| People v Brice |
| 2017 NY Slip Op 00343 [146 AD3d 1152] |
| January 19, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ryan Brice, Also Known as D,Appellant. |
Jeffrey L. Zimring, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Garry, J.P. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedJanuary 17, 2014 in Albany County, convicting defendant upon his plea of guilty of thecrime of criminal possession of a weapon in the second degree.
Defendant sold a firearm loaded with .223 caliber ammunition to a third party on theevening of August 30, 2012. Thereafter, he was charged in a two-count indictment withcriminal possession of a weapon in the second degree and criminal sale of a firearm inthe third degree. Defendant moved to dismiss the indictment on multiple grounds, andSupreme Court denied the motion. Ultimately, in August 2013, defendant accepted a pleabargain by which he pleaded guilty to criminal possession of a weapon in the seconddegree, in violation of Penal Law § 265.03, in full satisfaction of theindictment. The plea agreement included a waiver of the right to appeal, subject tospecified reservations. The court sentenced defendant in accord with the agreement to aprison term of eight years with three years of postrelease supervision. Defendantappeals.
Initially, we find that defendant's waiver of appeal was valid. The record reveals thatSupreme Court adequately conveyed, and defendant understood, that his right to appealwas separate and distinct from the other trial rights forfeited by his guilty plea (see People v Lopez, 6 NY3d248, 256-257 [2006]; People v Handly, 122 AD3d 1007, 1008 [2014]). Contraryto defendant's claim, the issues he now seeks to raise were not among the specific mattershe reserved. In the course of his plea, defendant reserved the right to challenge theunderlying [*2]statute on the ground of federalpreemption, asserting that the statute was thus unconstitutional, and further reserved theissue whether he was an "authorized person" within the meaning of Penal Law§ 265.11. Upon appeal, he now asserts that he also retained the right toappeal the issue of whether the gun that he possessed and sold met the statutorydefinition of a "firearm." This is belied by the record.
To the extent that defendant may be asserting that his guilty plea was not a knowingchoice, this is also unsupported by the record. Prior to accepting defendant's plea,Supreme Court fully outlined the terms of the plea agreement, without objection.Criminal possession of a weapon in the second degree requires defendant's possession ofa loaded "firearm," which may be defined as an "assault weapon" (Penal Law§§ 265.03 [3]; 265.00 [3] [e]). During the plea colloquy, defendantadmitted to his possession of an "assault weapon with .223 caliber ammunition." Asstated above, defendant specifically reserved certain issues for appeal. The courtcarefully described the various rights that defendant was forfeiting and permitted a pausein the proceedings for defendant to confer with his attorney. The record does not supportfinding that defendant was confused in any manner as to the terms of his plea agreementor his appeal waiver. Instead, upon review, we find that his guilty plea was voluntary andknowing, and we thus uphold it (see People v Conceicao, 26 NY3d 375, 382-383 [2015]; People v Charleston, 142AD3d 1248, 1248 [2016]; People v Khan, 139 AD3d 1261, 1263 [2016], lvdenied 28 NY3d 932 [2016]).
Finally, we reject defendant's assertion that his challenge presents a jurisdictionaldefect in the indictment. A jurisdictional defect "is not subject to the preservation ruleand may not be waived" (Peoplev Pierce, 14 NY3d 564, 570 n 2 [2010]). However, an "indictment isjurisdictionally defective only if the acts alleged to have been performed by the defendantdo not constitute an actual crime" (People v Hall, 125 AD3d 1095, 1096 [2015] [internalquotation marks and citation omitted]; see People v Simmons, 103 AD3d 1027, 1029 [2013],lv denied 21 NY3d 1009 [2013]). Defendant's challenge here, although cloakedas a jurisdictional defect, is in fact addressed to the evidentiary sufficiency of theindictment. It was thus forfeited by his guilty plea (see People v Plunkett, 19 NY3d 400, 405-406 [2012];People v Hansen, 95 NY2d 227, 230-232 [2000]; People v Cunningham,229 AD2d 669, 669-670 [1996]).
Egan Jr., Rose, Clark and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.