| People v Dubois |
| 2017 NY Slip Op 04177 [150 AD3d 1562] |
| May 25, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Alvin W.Dubois, Jr., Appellant. |
Brian M. Quinn, Albany, for appellant.
Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Saratoga County (Sypniewski,J.), rendered August 24, 2015, convicting defendant upon his plea of guilty of the crimes ofburglary in the first degree and burglary in the second degree.
In November 2014, defendant was charged in an eight-count indictment, as amplified by abill of particulars, with burglary in the first degree and other violent crimes stemming from hisinvasion of an apartment in the middle of the night, during which he assaulted the femaleoccupant. In June 2015, defendant was charged in a superior court information with burglary inthe second degree related to another home invasion. Pursuant to a joint plea agreement resolvingall charges, defendant pleaded guilty to burglary in the first degree under count 2 of theindictment, and also waived indictment and pleaded guilty to burglary in the second degree ascharged in the superior court information. The plea agreement required that defendant waive hisright to appeal, and he admitted his status as a second felony offender. Consistent with theagreement, County Court imposed a prison sentence of 25 years with five years of postreleasesupervision on the first degree burglary conviction and a five-year prison sentence with five yearsof postrelease supervision on the second degree burglary conviction, the sentences to be servedconsecutively. Defendant appeals.
We affirm. Initially, contrary to defendant's claim, the plea colloquy and the signed waiversdemonstrate that he knowingly, intelligently and voluntarily waived the right to appeal hisconviction and sentence (see People vLopez, 6 NY3d 248, 256 [2006]; People v Peterson, [*2]147 AD3d 1148, 1149 [2017]). More specifically, the recordreflects that, as to each conviction, an appeal waiver was recited as a condition of the pleaagreement, County Court explained its meaning and made clear its separate and distinct natureand defendant indicated that he understood and accepted this condition. Defendant then signedseparate written appeal waivers in open court after conferring with counsel and assuring the courtthat he understood them (see People vLewis, 143 AD3d 1183, 1185 [2016]), which he reaffirmed at sentencing. Given thevalid appeal waivers, defendant is precluded from challenging the agreed-upon sentence as harshand excessive (see People v Peterson, 147 AD3d at 1149).
Defendant's challenge to his guilty plea survives his waivers of appeal but was not preservedby an appropriate postallocution motion despite a reasonable opportunity to do so (seeCPL 220.60 [3]; People v Williams,27 NY3d 212, 214 [2016]; People v Peterson, 147 AD3d at 1149). Further,defendant made no statements during the plea allocution that cast doubt upon his guilt orotherwise called into question the voluntariness of his plea so as to trigger the narrow exceptionto the preservation requirement (see People v Lopez, 71 NY2d 662, 665-666 [1988];People v Lewis, 143 AD3d at 1185). Were we to address this claim, we would find that,contrary to defendant's argument, County Court advised him during the plea allocution that hewould be waiving, among other rights, his right to present defenses, which he indicated heunderstood, and he acknowledged that he was pleading guilty because he was, in fact, guilty,thereby establishing the knowing, voluntary and intelligent nature of his plea (see People v Haffiz, 19 NY3d 883,884 [2012]; People v Khan, 139AD3d 1261, 1264 n 3 [2016], lv denied 28 NY3d 932 [2016]).
Defendant's ineffective assistance of counsel claim survives his waivers of appeal to theextent that it impacts upon the voluntariness of his guilty plea, but is similarly unpreserved forour review in the absence of an appropriate postallocution motion (see People v Lewis,143 AD3d at 1185). In any event, defense counsel made appropriate pretrial challenges to thegrand jury proceedings and indictment and contested the admissibility of defendant's statementsto police, in addition to securing a favorable plea deal, and defendant indicated during the pleaallocution that he was satisfied with counsel's representation. Accordingly, were we to addressthis claim, we would find that there is nothing in the record that calls into question counsel'seffectiveness (see People v Hall,147 AD3d 1151, 1152 [2017]; People v Oddy, 144 AD3d 1322, 1324 [2016]). Defendant's claimsthat refer to matters outside of the record, such as what counsel advised him, are more properlyraised in a CPL article 440 motion (seePeople v Perkins, 140 AD3d 1401, 1403 [2016], lv denied 28 NY3d 1126[2016]).
Defendant further argues that the indictment is jurisdictionally defective.[FN*] However, "[a]n indictment isjurisdictionally defective only if it does not effectively charge the defendant with the commissionof a particular crime—for instance, if it fails to allege that the defendant committed actsconstituting every material element of the crime charged" (People v D'Angelo, 98 NY2d733, 734-735 [2002]). Here, each count of the indictment cited the pertinent Penal Law sectionand recited the statutory elements of the crime and, accordingly, the indictment was notjurisdictionally defective (see id. at 735; People v Wilson, 144 AD3d 1182, 1183 [2016]). Defendant alsoraises other issues with regard to alleged defects in the indictment, challenging the factualspecificity of each count, compliance with the requirements of CPL 200.50 (7) and the [*3]legal sufficiency of the evidence underlying certain counts.However, these claims are nonjurisdictional in nature and, thus, were waived by defendant'sguilty plea (see People v Brice, 146AD3d 1152, 1154 [2017], lv denied — NY3d — [Apr. 20, 2017]; People v Wares, 124 AD3d 1079,1080 [2015], lv denied 25 NY3d 993 [2015]; People v Cole, 118 AD3d 1098, 1099 [2014]). Such claims alsowere expressly encompassed by defendant's signed waivers of appeal. Defendant's remainingcontentions similarly lack merit.
Garry, J.P., Lynch, Clark and Aarons, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:Defendant moved to dismiss theindictment but did not raise this specific issue. However, a jurisdictional defect in an indictmentsurvives an appeal waiver and "is not subject to the preservation rule" (People v Pierce, 14 NY3d 564,570 n 2 [2010]).