| People v Porath |
| 2013 NY Slip Op 01880 [104 AD3d 1028] |
| March 21, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DavidK. Porath, Appellant. |
—[*1] James E. Conboy, District Attorney, Fonda (William J. Mycek of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Montgomery County(Catena, J.), rendered December 12, 2011, convicting defendant upon his plea of guiltyof the crime of burglary in the second degree.
Following what defendant characterized as a "crime spree" in which he "committedsome burglaries," he was charged by indictment with burglary in the second degree andpetit larceny in Montgomery County. Pursuant to a plea agreement, defendant pleadedguilty to burglary in the second degree in full satisfaction of the indictment and waivedhis right to appeal. The plea agreement also provided that the People would not seek tofile additional charges against defendant, that defendant would be sentenced to a prisonterm of 10 years followed by five years of postrelease supervision and restitution, andthat the sentence would run concurrently with sentences previously imposed in otherjurisdictions. Following a restitution hearing, defendant was sentenced as agreed andrestitution in the amount of $640.50 was imposed. Defendant now appeals.
Defendant argues that neither his plea nor his waiver of the right to appeal weremade knowingly and voluntarily. Inasmuch as defendant made an oral request towithdraw his plea, raising many of the points argued herein, we find that it wasadequately preserved (seePeople v Green, 82 AD3d 1453, 1453 [2011], lv denied 17 NY3d 795[2011]). Nonetheless, this [*2]argument is unavailing.County Court apprised defendant of the consequences of his plea and the rights he wasforfeiting (see People v Green, 82 AD3d at 1453; People v Champion, 20 AD3d772, 773 [2005]). Defendant confirmed his understanding and further demonstratedhis comprehension of the process and his rights by raising relevant concerns throughoutthe proceedings, each one of which was considered and appropriately addressed by thecourt. Defendant's failure to recall certain details of the crime is of no consequence here,as the court engaged defendant in a colloquy whereby he admitted to each of theelements of the crime (seePeople v Bridge, 71 AD3d 1197, 1198 [2010]; People v Kaszubinski, 55AD3d 1133, 1136 [2008], lv denied 12 NY3d 855 [2009]). Finally, the courtseparately addressed the appeal waiver as a condition of the plea agreement, anddefendant signed a written waiver after consultation with his attorney.
With regard to defendant's claim that the indictment was defective because it recitedan incorrect date, his knowing and voluntary guilty plea constitutes a waiver of any suchnonjurisdictional defect (seePeople v Slingerland, 101 AD3d 1265, 1265-1266 [2012]; People v Brown, 75 AD3d655, 656 [2010]). Moreover, the alleged defect was cured when the People'sunchallenged request to amend the indictment to reflect the correct date was properlygranted prior to entry of the guilty plea (see CPL 200.70 [1]; People vSlingerland, 101 AD3d at 1266; People v Champion, 20 AD3d at 774).Defendant's argument regarding the severity of the negotiated sentence is precluded byhis valid appeal waiver and, in any event, is wholly without merit.
Peters, P.J., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.