People v McKinney

2016 NY Slip Op 03107 [138 AD3d 604]

April 26, 2016

Appellate Division, First Department

As corrected through Wednesday, June 1, 2016

[*1]

The People of the State of New York,Respondent, v Michael McKinney, Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Antoine Morris ofcounsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Jonathon Krois of counsel), forrespondent.

Judgment, Supreme Court, New York County (Charles H. Solomon, J.), renderedDecember 18, 2013, convicting defendant, upon his plea of guilty, of criminal possessionof a controlled substance in the third degree, and sentencing him, as a second felony drugoffender, to a term of 31/2 years, unanimously affirmed.

The motion court properly denied defendant's request for a Mapp/Dunawayhearing. Defendant received specific information about the basis for his arrest, includingthat a police officer observed him holding what appeared to be a bag of marijuana inpublic view. Accordingly, defendant's general assertion that the arresting officers did notsee him commit a crime was not a sworn allegation of fact sufficient to support a groundfor suppression, nor did it create any factual issue warranting a hearing (see e.g. People v France, 12NY3d 790 [2009]).

The indictment was not jurisdictionally defective, because it charged defendant witha particular crime, and alleged that he committed acts constituting every material elementof the crime (see People v Iannone, 45 NY2d 589, 600 [1978]). Although theoriginal indictment alleged that defendant possessed cocaine, and it is undisputed that thedrug involved was actually heroin, this did not create a jurisdictional defect. Had the caseproceeded to trial on a factually incorrect, unamended indictment, that may have raisedissues such as variance between the indictment and the proof (see e.g. People vRodriguez, 190 AD2d 566 [1st Dept 1993], lv denied 81 NY2d 1019[1993]), but no such issues arise in the present procedural posture.

To the extent defendant challenges any nonjurisdictional defects in the indictment,they are waived by his guilty plea (see People v Hansen, 95 NY2d 227, 230-231[2000]). In any event, the trial court properly permitted the People to amend theindictment to accurately allege that defendant possessed heroin, rather than cocaine, afterreviewing the grand jury minutes and confirming that the error was clerical and that theproof before the grand jury dealt with heroin. Defendant, who had no objection to theamendment, was not prejudiced or surprised (see CPL 200.70 [1]; People vAcevedo, 215 AD2d 115, 116 [1st Dept 1995], lv denied 85 NY2d 969[1995]).

We perceive no basis for reducing the sentence. Concur—Sweeny, J.P., Saxe,Moskowitz, Gische and Webber, JJ.