| People v Yunga |
| 2014 NY Slip Op 08361 [122 AD3d 951] |
| November 26, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Patricio Yunga, Appellant. |
Labe M. Richman, New York, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Merri Turk Lasky, and Mariana Zelig of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Chin-Brandt, J.), rendered September 19, 2006, convicting him of operating a motorvehicle while under the influence of alcohol, as a felony, upon his plea of guilty, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant was convicted of operating a motor vehicle while under the influenceof alcohol, as a felony, upon his plea of guilty. Prior to pleading guilty, the defendantwaived his right to be indicted by a grand jury and agreed to proceed by Superior CourtInformation. The defendant, inter alia, challenges the validity of that waiver.
The defendant's challenge to the validity of his waiver of indictment is not forfeitedby his plea of guilty and would not be precluded by any valid waiver of the right toappeal (see People v Boston, 75 NY2d 585, 589 n [1990]; People v Sze, 113 AD3d795 [2014]; People v Libby, 246 AD2d 669, 670-671 [1998]). Nor does thatclaim require preservation (see People v Boston, 75 NY2d at 589 n).
However, it is without merit. The record does not support the defendant's assertionthat he was not held for the action of a grand jury prior to his execution of the waiver ofindictment (see People v Hart, 171 AD2d 755, 756 [1991]), as required by statute(see CPL 195.10 [1] [a]). The fact that the case was transferred from a localcriminal court to the Supreme Court, which certified that all statutory requirements weremet for a waiver of indictment, demonstrates to the contrary (see People v Simmons, 110AD3d 1371, 1372-1373 [2013]; People v Davenport, 106 AD3d 1197, 1197-1198 [2013]).Further, where, as here, the defendant's "waiver of indictment satisfied all of therequirements of the New York Constitution and CPL article 195, the waiver ofindictment was valid" (People vGramola, 102 AD3d 810, 810 [2013]; see People v Hanely, 107 AD3d 917 [2013]).
The defendant additionally claims that the People failed to file a special informationpursuant to CPL 200.60, charging that he had previously been convicted of driving whileintoxicated. However, that nonjurisdictional procedural defect was forfeited by thedefendant's plea of guilty (seePeople v Brown, 113 AD3d 632 [2014]; People v Baxter, 86 AD3d 648 [2011]; People vViano, 287 AD2d 584, 585 [2001]). Rivera, J.P., Skelos, Dickerson and Barros, JJ.,concur.