| People v Martinez |
| 2013 NY Slip Op 03878 [106 AD3d 1379] |
| May 30, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vJoseph R. Martinez, Appellant. |
—[*1] Kristy L. Sprague, District Attorney, Elizabethtown (Michael P. Langey of counsel),for respondent.
Stein, J. Appeal from a judgment of the County Court of Essex County (Meyer, J.),rendered September 28, 2011, convicting defendant upon his plea of guilty of the crimesof criminal sale of a controlled substance in the fourth degree, criminal possession of acontrolled substance in the fourth degree and welfare fraud in the fifth degree.
In June 2011, defendant waived indictment and agreed to prosecution by a superiorcourt information charging him with criminal sale of a controlled substance in the fourthdegree, criminal possession of a controlled substance in the fourth degree and welfarefraud in the fifth degree. Pursuant to a negotiated plea agreement, he pleaded guilty to allcharges and waived his right to appeal. Defendant was thereafter sentenced inaccordance with the plea agreement, as a second felony drug offender, to seven years inprison and three years of postrelease supervision on each drug conviction and one year injail on the welfare conviction, to run concurrently. Defendant now appeals.
We affirm. Defendant's claim that the third count of the superior courtinformation—charging him with welfare fraud in the fifth degree—isjurisdictionally defective survives his guilty plea and waiver of appeal (see People v Kamburelis, 100AD3d 1189, 1189-1190 [2012]; People v Hurell-Harring, 66 AD3d 1126, 1127 n 1 [2009]).Nonetheless, inasmuch as the information specifically refers to Penal Law §158.05 (1) and charges that defendant "did commit [*2]afraudulent welfare act and thereby takes or obtains public assistance benefits," it apprisesdefendant of the charges and is, therefore, sufficient to survive a jurisdictional challenge(see People v Kamburelis, 100 AD3d at 1189-1190; People v McDuffie, 89 AD3d1154, 1155 [2011], lv denied 19 NY3d 964 [2012]). To the extent that hechallenges the factual sufficiency of the superior court information with respect to thewelfare charge, such contention is unpreserved by his failure to timely object and isfurther precluded by his guilty plea (see People v Young, 100 AD3d 1186, 1188 [2012]; People v Quinones, 51 AD3d1226, 1227 [2008], lv denied 10 NY3d 938 [2008]). Defendant's remainingcontentions, including his challenge to the severity of his sentence, are precluded by hisvalid waiver of the right to appeal his conviction and sentence (see People v Boone, 101AD3d 1358, 1359 [2012], lv denied 20 NY3d 1096 [2013]; People v Anderson, 99 AD3d1034, 1035 [2012], lv denied 20 NY3d 1009 [2013]).
Peters, P.J., Lahtinen and Garry, JJ., concur. Ordered that the judgment is affirmed.