| People v Cruz |
| 2013 NY Slip Op 01875 [104 AD3d 1022] |
| March 21, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v CarlosCruz, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Chemung County (Hayden,J.), rendered April 1, 2011, convicting defendant upon his plea of guilty of the crime ofattempted promoting prison contraband in the first degree.
Defendant, an inmate, was charged with promoting prison contraband in the firstdegree after he was found to be in possession of a folded over metal can lid with a tapehandle. He ultimately pleaded guilty to attempted promoting prison contraband in thefirst degree and was sentenced, as a second felony offender, to the agreed-upon prisonterm of 1½ to 3 years, with the sentence to run consecutively to the prison term hewas already serving. Defendant appeals.
We affirm. Inasmuch as the record before us does not indicate that defendant movedto withdraw his plea or vacate the judgment of conviction, his challenges to the factualsufficiency of the allocution and the voluntariness of his plea are unpreserved for ourreview (see People vClemons, 96 AD3d 1086, 1087 [2012], lv denied 19 NY3d 1101[2012]; People v Klages, 90AD3d 1149, 1150 [2011], lv denied 18 NY3d 925 [2012]). Moreover,contrary to defendant's contention, we do not find that his statements during the pleaallocution cast doubt upon his guilt or negated an essential element of the crime so as totrigger the narrow exception to the preservation requirement (see People v Board, 75 AD3d833, 833 [2010]; People vColes, 13 AD3d 665, 666 [2004]).[*2]
While defendant's claim that the indictment wasjurisdictionally defective in that it did not allege conduct constituting every element ofthe charged crime survives his guilty plea (see People v George, 261 AD2d 711,713 [1999], lv denied 93 NY2d 1018 [1999]), it is without merit. " '[A]nindictment is jurisdictionally defective only if it does not effectively charge the defendantwith the commission of a particular crime' " (People v Ray, 71 NY2d 849, 850[1988], quoting People v Iannone, 45 NY2d 589, 600 [1978]; accord People v Slingerland,101 AD3d 1265, 1266 [2012]; People v Champion, 20 AD3d 772, 773 [2005]). To thatend, "[w]here an indictment count incorporates by reference the statutory provisionapplicable to the crime intended to be charged, it has been repeatedly held that this issufficient to apprise the defendant of the charge and, therefore, renders the countjurisdictionally valid" (People vBurch, 97 AD3d 987, 988 [2012], lv denied 19 NY3d 1101 [2012][internal quotation marks and citations omitted]; accord People v D'Angelo, 98NY2d 733, 734-735 [2002]; People v Kamburelis, 100 AD3d 1189, 1189-1190 [2012];People v Brown, 75 AD3d655, 656 [2010]). Here, inasmuch as the indictment recites, among other things, thespecific section of the Penal Law under which defendant had been charged, we cannotconclude that the indictment was jurisdictionally defective. To the extent that defendantchallenges the factual sufficiency of the indictment, such challenges to nonjurisdictionaldefects in the accusatory instrument were forfeited by his guilty plea (see People vBrown, 75 AD3d at 656; People v George, 261 AD2d at 713).
Rose, J.P., Lahtinen and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.