| People v Young |
| 2012 NY Slip Op 07904 [100 AD3d 1186] |
| November 21, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Quayvon M.Young, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered March 22, 2011, convicting defendant upon his plea of guilty of the crime of robbery inthe first degree.
Defendant was involved in a brutal attack and robbery of a man in a parking lot in the City ofAlbany on the evening of June 13, 2010. A grand jury handed up a five-count indictment jointlycharging defendant and two codefendants with assault in the first degree (two counts), robbery inthe first degree (two counts) and robbery in the second degree. Pursuant to a plea agreement,which also satisfied an unrelated robbery, defendant entered a guilty plea to a single count of firstdegree robbery, fully admitting his role in the charged crimes. Defendant also unqualifiedlywaived his right to appeal his conviction and sentence, both orally during a thorough colloquyand in a written appeal waiver signed in open court. Sentenced to a 13-year term of imprisonment(one year less than the agreed-upon sentence) and five years of postrelease supervision, defendantnow appeals.
Defendant's primary contention is that the indictment was jurisdictionally defective becauseit did not include his name in the body of each count of the joint indictment. Defendant did notraise this specific claim in his pretrial motion to dismiss the indictment (see CPL 210.20[2]; 210.25) and, thus, to the extent that it is a challenge to the sufficiency of the factualallegations in or facial validity of the indictment, it is a waivable defect which was not preserved[*2]for appellate review (see People v Hansen, 95 NY2d227, 230-231 [2000]; People v Iannone, 45 NY2d 589, 600-601 [1978]; People vHalpin, 261 AD2d 647, 647 [1999], lv denied 93 NY2d 971 [1999]). Defendantargues that this claimed jurisdictional defect in the indictment may be raised for the first time onappeal and is not waived by a guilty plea or appeal waiver (see People v Hansen, 95NY2d at 230; People v Iannone, 45 NY2d at 600; People v Simmons, 27 AD3d 786, 786-787 [2006], lvdenied 7 NY3d 763 [2006]; People v Sayles, 292 AD2d 641, 642 [2002], lvdenied 98 NY2d 681 [2002]). We disagree, as "an indictment is jurisdictionally defectiveonly if it does not effectively charge the defendant with the commission of a particular crime. . . [as where] the acts it accuses [the] defendant of performing simply do notconstitute a crime, or . . . it fails to allege that a defendant committed actsconstituting every material element of the crime charged" (People v Iannone, 45 NY2d at600-601 [citation omitted]).
The indictment here satisfies the requirements of CPL 200.50 as to form and content. Eachcount contains a title correctly naming defendant and two codefendants; the body of every counteffectively alleges each defendant's commission of a designated offense at a date, time, place andin a manner specified. The title collectively denominates all three named codefendants as"defendant" rather than "defendants," and the body of each count charges each "defendant" withthe specified crime, thus adopting in the allegations of every count each named "defendant" inthe title, without listing their individual names; this is, at most, a minor defect and not ajurisdictional defect (see People v Brothers, 66 AD2d 954, 954-955 [1978]; Downeyv Hale, 67 F2d 208, 208 [1st Cir 1933], cert denied 291 US 662 [1934]; Franco vWalsh, 2002 WL 596355, *11, 2002 US Dist LEXIS 6852, *32-33 [SD NY 2002],affd 73 Fed Appx 517 [2d Cir 2003]). The CPL does not require that a defendant'sindividual name be set forth in each count of the indictment where, as here, the defendant's nameis included in the title and it is clear that the count alleges the defendant's commission of thespecified crime (see CPL 200.50 [7] [a]; Downey v Hale, 67 F2d at 208;People v Brothers, 66 AD2d at 955; People v Muhammad, 2009 NY Slip Op31474[U] [Sup Ct, Kings County 2009]; People v Bush, 2008 NY Slip Op 30412[U][Sup Ct, Kings County 2008]; People ex rel. Cotterell v Graham, 2007 NY Slip Op31856[U] [Sup Ct, Kings County 2007]).
Defendant's assertion that the counts of the indictment failed to detail the specific role heplayed in these crimes is an unpreserved challenge to the sufficiency of the factual allegationsthat defendant waived by his guilty plea and appeal waiver; it is not a nonwaivable fatal defect(see People v Iannone, 45 NY2d at 600-601). "The People are not required to specify inan indictment whether a defendant is being charged as a principal or as an accomplice. Forcharging purposes, the distinction . . . is academic" (People v Guidice, 83NY2d 630, 637 [1994]; see People v Rivera, 84 NY2d 766, 769, 771 [1995]). Moreover,defendant in fact requested this information, which the People supplied in their answers to thebill of particulars, specifying that they intended to prove that defendant acted both as a principaland as an accomplice (see CPL 200.95 [1]). Thus, the indictment fulfilled the statutorymandates (see CPL 200.50) as well as the purposes of an indictment, including fair noticeof the accusations against defendant so that he could prepare a defense (see People vIannone, 45 NY2d at 594-595, 598-599).
Defendant's claims that he was ineffectively represented by counsel do not implicate thevoluntariness of his guilty plea and, thus, are precluded by his valid waiver of appeal (see People v Speranza, 96 AD3d1164, 1165 [2012]). In any event, counsel's failure to challenge the sufficiency of theindictment was not deficient, as the indictment is demonstrably sufficient, and failure to make anargument "that has little or no chance of success" cannot be faulted (People v Caban, 5 NY3d 143, 152[2005]). Likewise, given that defendant's prior felony conviction (People v Young, 94 AD3d 1291[2012], lv denied 19 NY3d 1030 [2012]) precluded youthful offender status, counsel'sfailure to pursue that status was appropriate (see CPL 720.10 [2]). Finally, defendant'schallenge to the sentence as harsh and excessive is foreclosed by his valid guilty plea and waiverof appeal (see People v Lopez, 6NY3d 248, 255 [2006]). Defendant's remaining contentions lack merit.
Rose, J.P., Lahtinen, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.