| People v Kamburelis |
| 2012 NY Slip Op 07905 [100 AD3d 1189] |
| November 21, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ColleenKamburelis, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered July 21, 2011, convicting defendant upon her plea of guilty of thecrime of attempted criminal sale of a controlled substance in the third degree.
Defendant waived indictment and agreed to be prosecuted by a superior court information(hereinafter SCI) charging her with attempted criminal sale of a controlled substance in the thirddegree. She pleaded guilty to this charge and waived her right to appeal. She was thereaftersentenced, in accordance with the plea agreement, to five years of probation. Defendant appeals.
Defendant's sole contention is that the SCI is jurisdictionally defective because it does notcontain sufficient factual allegations of the material elements of the crime in question.Preliminarily, we note that this claim is not precluded by defendant's waiver of her right to appealor her guilty plea (see People vMcDuffie, 89 AD3d 1154, 1155 [2011], lv denied 19 NY3d 964 [2012]; People v Binns, 82 AD3d 1449,1450 [2011]). Nevertheless, we find it to be without merit. A charging instrument thatincorporates by reference the statutory provisions applicable to the crime charged has been heldto allege the material elements of the crime sufficiently to survive a jurisdictional challenge(see People v D'Angelo, 98 NY2d 733, 734-735 [2002]; People v Mitchell, 94 AD3d 1252,1252-1253 [2012], lv denied 19 NY3d 964 [2012]; People v Binns, [*2]82 AD3d at 1450; People v Downs, 26 AD3d 525, 526 [2006], lv denied 6NY3d 847 [2006]). Here, not only does the SCI specifically refer to Penal Law §§110.00 and 220.39 (1), but it also contains factual references to the date and location of theincident as well as the specific drug involved. Accordingly, there is no jurisdictional defect anddefendant is precluded by her guilty plea from otherwise challenging the factual sufficiency ofthe SCI (see People v Morales, 66AD3d 1083, 1084 [2009]).
Rose, J.P., Lahtinen, Spain and McCarthy, JJ., concur. Ordered that the judgment is affirmed.