| People v Gannon |
| 2018 NY Slip Op 08582 [167 AD3d 1163] |
| December 13, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Heidi Gannon, Appellant. |
Brian M. Quinn, Albany, for appellant.
Karen A. 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 (Murphy III, J.),rendered October 3, 2016, convicting defendant upon her plea of guilty of the crimes of criminalsexual act in the first degree and sexual abuse in the first degree.
After police discovered that defendant had assisted her husband in having inappropriatesexual contact with her two minor daughters over the course of many years, felony complaintswere filed alleging that defendant had committed various crimes. Four of the felony complaintsinvolved criminal conduct that occurred during March 2014 and alleged that defendant hadcommitted the crimes of sexual abuse in the first degree (two counts), criminal sexual act in thefirst degree (two counts) and attempted rape in the first degree. Two other felony complaintsinvolved criminal conduct that occurred between 2009 and 2015 and alleged that defendant hadcommitted the crime of endangering the welfare of a child (two counts). Defendant subsequentlywaived indictment and agreed to be prosecuted by a superior court information (hereinafter SCI)charging her with the crimes of criminal sexual act in the first degree under Penal Law§ 130.50 (4) and sexual abuse in the first degree under Penal Law§ 130.65 (4) based upon criminal conduct that occurred in September and October2009. She pleaded guilty to both crimes in satisfaction thereof and waived her right to appeal,both orally and in writing. In accordance with the terms of the plea agreement, she was givenconcurrent sentences of 10 years in prison followed by 20 years of postrelease supervision on thecriminal sexual act conviction, and seven years in prison followed by 10 years of postreleasesupervision on the sexual abuse conviction. She now appeals.
Initially, defendant contends that the waiver of indictment and the SCI are jurisdictionallydefective with respect to the crime of sexual abuse in the first degree under Penal Law§ 130.65 (4) because this provision of the Penal Law was not in effect in 2009 whenthe alleged criminal conduct occurred. Preliminarily, we note that defendant is not precluded byher unchallenged waiver of the right to appeal from raising this jurisdictional challenge (see People v Bethea, 61 AD3d1016, 1017 [2009]; see also Peoplev Casey, 66 AD3d 1128, 1129 [2009]). The People concede that a jurisdictional defectexists inasmuch as the relevant Penal Law provision did not become effective until November 1,2011 (see Penal Law § 130.65 [4], as added by L 2011, ch 26,§ 1), and a defendant may not be charged with a crime that does not exist at thetime that the act was committed (see People v Bethea, 61 AD3d at 1017; People vRoe, 191 AD2d 844, 845 [1993]). Consequently, defendant's plea of guilty to sexual abuse inthe first degree must be vacated and count 2 of the SCI charging her with this crime must bedismissed. In view of this, defendant's other jurisdictional claims with respect to this crime arerendered academic.
As for the crime of criminal sexual act in the first degree as charged in count 1 of the SCI,defendant asserts that the waiver of indictment and SCI, as well as the underlying felonycomplaints, are jurisdictionally defective because they fail to reference Penal Law§ 20.20 or contain factual allegations supporting defendant's culpability as anaccomplice to her husband's criminal acts. Although labeled a jurisdictional challenge, this claimis essentially a challenge to the factual sufficiency of the charging instrument and, as such, isforeclosed by defendant's guilty plea (see People v Cook, 150 AD3d 1543, 1544 [2017]; People v Brice, 146 AD3d 1152,1154 [2017], lv denied 29 NY3d 996 [2017]; People v Moon, 119 AD3d 1293, 1294 [2014], lv denied 24NY3d 1004 [2014]). In any event, inasmuch as the SCI specifically referenced Penal Law§ 130.50 (4), which sets forth the elements of criminal sexual act in first degree,and alleged that defendant "did intentionally aid [her husband] when he engaged in oral sexualconduct with another person who was less than thirteen years old," we would conclude, if thisissue were before us, that there are no jurisdictional deficiencies (see People v Dubois, 150 AD3d1562, 1564 [2017]; People v Cook, 150 AD3d at 1543-1544; People v Moon,119 AD3d at 1294).
Defendant further argues that her guilty plea was not knowing, voluntary and intelligent andthat she was deprived of the effective assistance of counsel, which impacted the voluntariness ofher guilty plea. Although these claims are not precluded by defendant's unchallenged appealwaiver, they have not been preserved for our review as the record does not disclose that she madean appropriate postallocution motion (see People v Baxter, 154 AD3d 1010, 1011 [2017]; People v Grumberg, 153 AD3d1525, 1526 [2017]). Furthermore, the exception to the preservation requirement isinapplicable as defendant did not make any statements during the plea colloquy that cast doubtupon her guilt or called into question the voluntariness of her plea (see People v White, 156 AD3d1249, 1249 [2017], lv denied 31 NY3d 988 [2018]; People v Mathayo, 155 AD3d1090, 1091 [2017], lv denied 30 NY3d 1107 [2018]).
Garry, P.J., Lynch, Aarons and Pritzker, JJ., concur. Ordered that the judgment is modified,on the law, by reversing defendant's conviction of sexual abuse in the first degree under count 2of the superior court information; said count dismissed and the sentence imposed thereonvacated; and, as so modified, affirmed.