| People v Ogunmekan |
| 2012 NY Slip Op 04075 [95 AD3d 701] |
| May 24, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Fayosi Ogunmekan, Also Known as Larry Moore, Appellant. The Peopleof the State of New York, Respondent, v Dwaine Eric Coleman,Appellant. |
—[*1] Richard M. Greenberg, Office of the Appellate Defender, New York (Risa Gerson ofcounsel), for Dwaine Eric Coleman, appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), forrespondent.
Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered August 6, 2009,as amended September 24, 2009, convicting defendant Fayosi Ogunmekan, upon his plea ofguilty, of grand larceny in the second degree (two counts), grand larceny in the third degree(seven counts), identity theft in the first degree (ten counts) and scheme to defraud in the firstdegree, and sentencing him, as a second felony offender, to an aggregate term of 6 to 12 years,unanimously affirmed. Judgment, same court and Justice, rendered June 25, 2009, convictingdefendant Dwaine Coleman, upon his plea of guilty, of attempted grand larceny in the thirddegree and identity theft in the second degree, and sentencing him, as a second felony offender,to an aggregate term of 1½ to 3 years, unanimously affirmed.
The error in certain counts of the indictment with respect to the name of the identity theftvictim, and the court's corrective action constituted, at most, nonjurisdictional defects (seePeople v Iannone, 45 NY2d 589, 594 [1978]). Accordingly, defendants' claims in this regardare forfeited by their guilty pleas, as well as their valid waivers of the right to appeal.
The counts at issue set forth every element of the crime of identity theft in the first degree(Penal Law § 190.80 [1]). Therefore, they were not jurisdictionally defective (seePeople v D'Angelo, 98 NY2d 733, 735 [2002]; People v Ray, 71 NY2d 849, 850[1988]).[*2]
However, each of these counts named, as the victim, anentity whose identity was not actually assumed by defendants under the underlying factualcircumstances of the case; instead, a different entity should have been named. Thus, the defectwas not in the language of the indictment, but in a contradiction between its language and theunderlying facts, creating an essentially latent defect. The substance of defendants' complaintabout these counts is not that they facially fail to state a crime, but that the evidence that waspresented to the grand jury, and would have been presented had defendants chosen to go to trial,did not sustain the allegations because the evidence did not match the named victim (see People v Greeman, 49 AD3d463, 464 [2008], lv denied 10 NY3d 934 [2008]). However, issues concerningfactual guilt are normally not reviewable on appeal when a defendant pleads guilty (People vTaylor, 65 NY2d 1 [1985]; People v Thomas, 53 NY2d 338 [1981]).
Coleman's challenge to the court's amendment of the indictment to substitute the name of onevictim with that of another is similarly forfeited, as well as being affirmatively waived, since thatclaim raises no jurisdictional defect (seePeople v Martinez, 52 AD3d 68, 71 [2008], lv denied 11 NY3d 791 [2008]); inany event, the amendment was permissible (see People v Gray, 157 AD2d 596 [1990],lv denied, 75 NY2d 966 [1990]). Defendants' remaining arguments relating to theindictment are likewise forfeited. To the extent defendants are challenging their guilty pleas asinvoluntarily made, those claims are without merit.
The court properly adjudicated Ogunmekan a second felony offender. Ogunmekan did notestablish that the prior conviction upon which the enhancement was based was obtained inviolation of his federal constitutional rights (see CPL 400.21 [7] [b]). The courtconducted an evidentiary hearing on Ogunmekan's claim that his 2003 guilty plea was theproduct of ineffective assistance of counsel, and there is no basis for disturbing the court'scredibility determinations. In any event, aside from questions of credibility, and regardless of theretroactivity of Padilla v Kentucky (559 US —, 130 S Ct 1473 [2010]) both ingeneral and in this procedural posture (see People v Catalanotte, 72 NY2d 641 [1988],cert denied 493 NY2d 811 [1989]), regardless of the applicability of Padilla to aplea that did not actually have any immigration consequences until the defendant's rearrest, andregardless of what immigration-related advice counsel provided or failed to provide, we concludethat Ogunmekan did not establish the prejudice prong of a Padilla claim (seePadilla, 559 US at —, 130 S Ct at 1483). Concur—Gonzalez, P.J., Andrias,Saxe, DeGrasse and Román, JJ.