| People v Boula |
| 2013 NY Slip Op 03875 [106 AD3d 1371] |
| May 30, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v BuckyA. Boula, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Timothy G. Blatchley of counsel),for respondent.
Rose, J.P. Appeal from a judgment of the County Court of Clinton County (Ryan, J.),rendered February 28, 2011, convicting defendant upon his plea of guilty of the crimes ofcriminal possession of a controlled substance in the second degree, unlawful manufactureof methamphetamine in the third degree and conspiracy in the second degree.
After a mobile methamphetamine laboratory was discovered in the bathroom ofdefendant's motel room, he was arrested and charged by indictment with the crimes ofcriminal possession of a controlled substance in the second degree (count 1), unlawfulmanufacture of methamphetamine in the third degree (count 2) and conspiracy in thesecond degree (count 3). Defendant's motion to dismiss the indictment on the ground thatcount 3 was jurisdictionally defective was denied and, thereafter, the People moved toamend that count of the indictment (see CPL 200.70). County Court granted thePeople's motion, finding that the requested amendment did not change the People'stheory as presented to the grand jury. Subsequently, defendant entered a plea of guilty toall counts of the indictment and was later sentenced, as a second felony drug offenderwith a prior violent felony conviction, to an aggregate prison term of 15 to 20 years to befollowed by a period of postrelease supervision. He was also ordered to pay restitution.Defendant now appeals.
We find merit to defendant's argument that the indictment was jurisdictionallydefective, [*2]a claim which is not foreclosed by hisguilty plea (see People v Hansen, 95 NY2d 227, 230 [2000]; People vMotley, 69 NY2d 870, 871-872 [1987]; People v Griswold, 95 AD3d 1454, 1454 [2012], lvdenied 19 NY3d 997 [2012]). It is well settled that " '[a] valid and sufficientaccusatory instrument is a nonwaivable jurisdictional prerequisite to a criminalprosecution' " (People vDreyden, 15 NY3d 100, 103 [2010], quoting People v Case, 42 NY2d98, 99 [1977] [citation omitted]; accord People v Jackson, 18 NY3d 738, 741 [2012]). Anindictment is jurisdictionally defective " 'if it does not charge the defendant with thecommission of a particular crime, by, for example, failing to allege every materialelement of the crime charged, or alleging acts that do not equal a crime at all' " (People v Slingerland, 101AD3d 1265, 1266 [2012], lv denied 20 NY3d 1104 [2013], quotingPeople v Hansen, 95 NY2d at 231; see People v Iannone, 45 NY2d 589,600 [1978]; People vPolanco, 2 AD3d 1154, 1154 [2003]).
Here, count 3 of the indictment charged defendant with conspiracy in the seconddegree, a crime which requires an "intent that conduct constituting a class A felony beperformed" (Penal Law § 105.15). While count 3 references the relevant statutorysection for conspiracy in the second degree and expressly states that defendant acted"with intent that conduct constituting a class A felony be performed," it does not includeany statutory reference to the class A felony listed in count 1 of the indictment. Rather,the factual allegations—that "defendant did agree with [another] to unlawfullymanufacture, prepare or produce methamphetamine"—are taken from count 2 ofthe indictment, which charged the class D felony of unlawful manufacturing ofmethamphetamine in the third degree (see Penal Law § 220.73). Theunlawful manufacture of methamphetamine, even in the first degree, does not constitutea class A felony (see Penal Law § 220.75), and third-degree unlawfulmanufacture of methamphetamine, as charged in count 2 of the indictment, could only begrounds for a charge of conspiracy in the fifth degree, a class A misdemeanor(see Penal Law §§ 105.05, 220.73).
While it is true that "[t]he incorporation [in an indictment] by specific reference tothe statute [defining the crime charged] operates without more to constitute allegations ofall the elements of the crime required by explicit provision of the statute itself or byjudicial gloss overlaid thereon" (People v Cohen, 52 NY2d 584, 586 [1981];see People v D'Angelo, 98 NY2d 733, 735 [2002]; People v Ray, 71NY2d 849, 850 [1988]), such reference may be negated, as it was here, by the inclusionof conduct that does not constitute the crime charged (see People v Hurell-Harring,66 AD3d 1126, 1128 n 3 [2009]; compare People v Motley, 69 NY2d at872). Accordingly, count 3 of the indictment was jurisdictionally defective because itfailed to effectively charge defendant with the commission of a crime. Count 3 must bedismissed, therefore, and defendant's sentence on that count must be vacated (see People v Hines, 84 AD3d1591, 1591-1592 [2011]; People v Reeves, 78 AD3d 1332, 1333 [2010], lvdenied 16 NY3d 835 [2011]; People v Hurell-Harring, 66 AD3d at1127-1128).
While not essential to our holding, it bears noting that the People's efforts to cure thejurisdictional defect in count 3 of the indictment were not authorized by the terms of CPL200.70. Pursuant to CPL 200.70 (1), a trial court may permit an indictment to beamended "with respect to defects, errors or variances from the proof relating to matters ofform, time, place, names of persons and the like," so long as the amendment does notchange the theory of the prosecution as presented to the grand jury or otherwise tend toprejudice a defendant on the merits. Significantly, however, CPL 200.70 (2) prohibitsany amendment of the indictment when, among other things, the amendment is needed inorder to cure a failure to charge or state an offense (see CPL 200.70 [2] [a]). Inshort, "notwithstanding the fact that the [g]rand [j]ury minutes support a charge, theindictment cannot be amended to cure one of the [*3]defects specified in [CPL 200.70 (2)]" (Peter Preiser,Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 200.70 at 18;see e.g. People v Struts, 281 AD2d 655, 656 [2001]). Here, the amendmenteffectively cured the failure to charge the crime of conspiracy in the second degree and,therefore, was prohibited by CPL 200.70 (2), regardless of any consistency with thePeople's theory before the grand jury (see People v Perez, 83 NY2d 269, 276[1994]).
Defendant also contends, and the People concede, that the sentence imposed oncount 2 of the indictment is illegal. The maximum permissible term of postreleasesupervision for unlawful manufacture of methamphetamine in the third degree is twoyears (see Penal Law §§ 70.70 [4] [b]; 70.45 [2] [c]; 220.73 [1]).Thus, County Court's imposition of a three-year term of postrelease supervision is not anauthorized sentence pursuant to Penal Law § 70.45, and the judgment must bemodified accordingly and the matter remitted for resentencing on that count (see People v Mao-Sheng Lin,84 AD3d 1595, 1595 [2011]; People v Guay, 72 AD3d 1201, 1205 [2010], affd18 NY3d 16 [2011]). We are not persuaded, however, that defendant was improperlysentenced as a second felony offender. Although he now contends that the sentencesimposed on his predicate felony convictions were illegal, "a sentencing defect does notinvalidate a prior conviction for purposes of adjudicating defendant's subsequent felonyoffender status" (People vAshley, 71 AD3d 1286, 1287 [2010], affd 16 NY3d 725 [2011]; seePeople ex rel. Emanuel v McMann, 7 NY2d 342, 344-345 [1960]; People v Mingo, 85 AD3d1061, 1061 [2011], lv denied 17 NY3d 954 [2011]).
Our review of defendant's contention that his sentence is harsh and excessive islimited to the terms of the sentence that are not affected by our conclusion that count 3 ofthe indictment must be dismissed and the term of postrelease supervision imposed oncount 2 must be vacated. In light of defendant's significant criminal history and thedangerous nature of his activities, we find no abuse of discretion or extraordinarycircumstances warranting reduction of the sentence (see People v Kendall, 91 AD3d 1191, 1193 [2012];People v Sawinski, 294 AD2d 667, 669 [2002], lv denied 98 NY2d 701[2002]). We have considered defendant's remaining contentions and find them to beunavailing.
Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is modified, onthe law, by reversing defendant's conviction of conspiracy in the second degree undercount 3 of the indictment and vacating defendant's sentence for unlawful manufacture ofmethamphetamine in the third degree under count 2 of the indictment; count 3 dismissedand the sentence imposed thereon vacated, and matter remitted to the County Court ofClinton County for resentencing on count 2; and, as so modified, affirmed.