| People v Davenport |
| 2013 NY Slip Op 03357 [106 AD3d 1197] |
| May 9, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AlbertDavenport, Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Kelly L. Egan of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Rensselaer County (Jacon,J.), rendered December 16, 2011, convicting defendant upon his plea of guilty of thecrime of failure to register as a sex offender under the Sex Offender Registration Act.
Defendant failed to register his change of address within 10 days after he moved tothe Town of Stephentown, Rensselaer County, as required by the Sex OffenderRegistration Act (see Correction Law §§ 168-f [4]; 168-t). Hewaived his right to prosecution by indictment and was charged by superior courtinformation (hereinafter SCI) with the crime of failure to register as a sex offender. Hepleaded guilty to this crime in full satisfaction of this charge and another charge thenpending against him, executed a written waiver of the right to appeal and was sentencedto a prison term of 1 to 3 years. He appeals.
Defendant contends that his waiver of indictment and the SCI are jurisdictionallydefective. Neither of these claims is precluded by his guilty plea or his waiver of the rightto appeal (see People vKamburelis, 100 AD3d 1189, 1189 [2012]; People v Brown, 47 AD3d[*2]1162, 1163 [2008], lv denied 10 NY3d 838[2008]; People v Welch, 46AD3d 1228, 1228-1229 [2007], lv denied 10 NY3d 845 [2008]). As to thewaiver of indictment, defendant alleges that the record does not establish that thestatutory requirements were met as, among other things, it fails to show that he was heldfor grand jury action by a local criminal court (see CPL 195.10). Defendant doesnot contend that he was not held for action by a grand jury, but limits his claim to theabsence of record proof. However, the transfer of defendant's case to County Court isevidence that he was held by a local criminal court for grand jury action, and a mere voidin the record is insufficient to establish his claim (see People v Barber, 280AD2d 691, 693 [2001], lv denied 96 NY2d 825 [2001]; People vWashington, 138 AD2d 857, 858 [1988]). Further, by expressing its approval of thewaiver of indictment and signing a written order to that effect, the court implicitly foundthat the waiver of indictment satisfied statutory requirements (see CPL 195.30).Notably, this order followed a thorough colloquy conducted to ascertain that defendantunderstood the nature of the rights he was surrendering; further, the prosecutor hadexpressed consent, and defendant had executed the written waiver in open court in hiscounsel's presence (see CPL 195.10 [1] [c]; 195.20; People v Barber, 280AD2d at 693; People v Chad S., 237 AD2d 986, 986 [1997], lv denied90 NY2d 856 [1997]). Lacking affirmative proof that the waiver did not fulfill statutoryrequirements or that other defects existed, we accord a presumption of regularity to theproceedings, and find the waiver of indictment valid (see People v Sabin, 73 AD3d 1390, 1391 [2010], lvdenied 15 NY3d 809 [2010]; People v Dennis, 66 AD3d 1058, 1058-1059 [2009]).
As to the SCI, we reject defendant's contention that it failed to adequately specify thedates upon which he failed to register. Although the SCI must specify that a chargedcrime was committed "on, or on or about, a designated date, or during a designatedperiod of time," the degree of precision can vary depending upon the underlying charge(CPL 200.50 [6]; see People v Morris, 61 NY2d 290, 294 [1984]; People v Slingerland, 101AD3d 1265, 1266 [2012], lv denied 20 NY3d 1104 [2013]).[FN*]To satisfy this requirement as to the crime with which defendant was charged, the SCInecessarily had to specify a period of time greater than 10 days, rather than a single date.Here, the SCI alleged that defendant failed to register "on or about the 28th of July, 2011,and the 10th day of August, 2011." This formulation—presumably referencing thedate of defendant's move and a second date more than 10 days thereafter by which he hadnot registered—was adequate to inform defendant of the time period in question.As the SCI also incorporated all the elements of the charged crime by reference to theapplicable statutes, it was effective to charge defendant with all of the elements of thecrime and to afford him fair notice of the charges against him (see People vD'Angelo, 98 NY2d 733, 734-735 [2002]; People v Welch, 46 AD3d at1229).
Lahtinen, P.J., Stein and Spain, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Unless expresslyprovided, all statutes that apply to an indictment also apply to an SCI (see CPL200.10, 200.15).