People v Carter

2017 NY Slip Op 01091 [147 AD3d 1514]

February 10, 2017

Appellate Division, Fourth Department

As corrected through Wednesday, March 29, 2017

[*1]

The People of the State of New York, Respondent, v Rick D.Carter, Appellant.

Joseph P. Miller, Cuba, for defendant-appellant.

Keith A. Slep, District Attorney, Belmont (J. Thomas Fuoco of counsel), for respondent.

Appeal from a judgment of the Allegany County Court (Terrence M. Parker, J.), renderedJune 22, 2015. The judgment convicted defendant, upon his plea of guilty, of course of sexualconduct against a child in the first degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcourse of sexual conduct against a child in the first degree (Penal Law § 130.75).Defendant contends that the indictment, which charges defendant with predatory sexual assaultagainst a child (§ 130.96), is jurisdictionally defective because it includes a timeperiod during which the child was 13 years old or older.

As a preliminary matter, we agree with defendant that he was not required to preserve theabove contention for our review, and we further agree that it is not waived as a result of his guiltyplea inasmuch as it concerns a nonwaivable jurisdictional defect (see People v Holmes, 101 AD3d1632, 1633 [2012], lv denied 21 NY3d 944 [2013]; see also People vIannone, 45 NY2d 589, 600-601 [1978]). We conclude, however, that defendant's contentionlacks merit because the indictment charged defendant with the crime of predatory sexual assaultagainst a child "by name and by reference to the relevant section[ ] . . . of the PenalLaw" (People v Quamina, 207 AD2d 1030, 1030 [1994], lv denied 84 NY2d1014 [1994]). Additionally, this is not a case where the inclusion of a period of time when thevictim was 13 years of age or older, in addition to a period of time when the victim was less than13 years old, serves to negate an allegation that the conduct also occurred when the victim wasless than 13 years old (cf. People vHurell-Harring, 66 AD3d 1126, 1127-1128 n 3 [2009]).

Defendant further contends that the indictment was jurisdictionally defective because the41/2-year time period set forth in the indictment is excessive. We reject defendant'scharacterization of that contention as a jurisdictional defect and instead conclude that it is anunpreserved challenge to the factual sufficiency of the allegations (see Iannone, 45 NY2dat 600-601; see also People v Carey,92 AD3d 1224, 1224-1225 [2012], lv denied 18 NY3d 992 [2012]). In any event, thecontention is without merit. It is well settled that the crime of predatory sexual assault against achild "is a continuing offense to which the usual requirements of specificity with respect to timedo not apply" (People v Bradberry,131 AD3d 800, 801 [2015], lv denied 26 NY3d 1086 [2015] [internal quotationmarks omitted]), and "time periods more broad than those alleged in the instant indictment havebeen deemed specific enough to satisfy the requirements of due process" (People v Errington, 121 AD3d1553, 1554 [2014], lv denied 25 NY3d 1163 [2015]; see People v Devane, 78 AD3d1586, 1587 [2010], lv denied 16 NY3d 858 [2011]; People v Furlong, 4 AD3d 839,840-841 [2004], lv denied 2 NY3d 739 [2004]).

Defendant further contends that his plea allocution was jurisdictionally defective because itfailed to establish that he engaged in multiple acts of sexual conduct with a person under the ageof 13 and because it included a time period during which the victim was 13 years old or older.That contention is actually a challenge to the factual sufficiency of the plea allocution, whichdefendant failed to preserve for our review by failing to move to withdraw the plea or to vacatethe judgment of conviction on that ground (see People v Newton, 143 AD3d 1286, 1286 [2016], lvdenied 28 NY3d 1126 [2016]) and, in any event, it is without merit. Additionally, althoughdefendant's statements regarding the effects of his medications may have "trigger[ed] [County][C]ourt's duty to conduct a further inquiry to ensure that defendant's plea was knowingly andvoluntarily made" (People vMcNair, 13 NY3d 821, 822-823 [2009]), the court's subsequent inquiry and its offeringdefendant an opportunity to move to withdraw his plea were sufficient to ensure that the plea wasvoluntary (see People v Brown, 305 AD2d 1068, 1069 [2003], lv denied 100NY2d 579 [2003]; see also People v Larry B., 277 AD2d 989, 989 [2000], lvdenied 96 NY2d 864 [2001]; People v Greer, 277 AD2d 1051, 1051 [2000], lvdenied 96 NY2d 829 [2001]).

Defendant's contention that the court erred in failing to order an examination pursuant toCPL 730.30 is also not preserved for our review (see People v Rought, 90 AD3d 1247, 1248 [2011], lv denied18 NY3d 962 [2012]). In any event, that contention is without merit inasmuch as "[t]here isno indication in the record that defendant was mentally incompetent at the time he entered hisguilty plea or at sentencing" (People v Carbonel, 296 AD2d 858, 858 [2002] [internalquotation marks omitted]).

Defendant further contends that his sentence is unduly harsh and severe; however, weperceive no basis in the record to modify the sentence as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [b]).

Finally, defendant's contention that he was denied effective assistance of counsel does notsurvive his guilty plea as defendant made only a conclusory contention that he would not havepleaded guilty, but for the alleged errors of defense counsel, for the first time in his reply brief(see People v McDonald, 1 NY3d109, 115 [2003]; see also People vSponburgh, 61 AD3d 1415, 1416 [2009], lv denied 12 NY3d 929 [2009]).Additionally, defendant "receive[d] an advantageous plea and nothing in the record casts doubton the apparent effectiveness of counsel" (Brown, 305 AD2d at 1069). Defendant'sremaining contentions are without merit. Present—Smith, J.P., Carni, Lindley, DeJosephand NeMoyer, JJ.