| People v Hummel-Parker |
| 2019 NY Slip Op 03105 [171 AD3d 1397] |
| April 25, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Michael Hummel-Parker, Appellant. |
Eric K. Schillinger, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Schenectady County(Sypniewski, J.), rendered September 28, 2016, convicting defendant upon his plea of guilty ofthe crime of attempted criminal possession of a weapon in the second degree.
Defendant waived indictment, pleaded guilty to a superior court information (hereinafterSCI) charging him with attempted criminal possession of a weapon in the second degree andwaived his right to appeal. County Court sentenced him, in accordance with the terms of the pleaagreement, to a prison term of three years followed by 1
Initially, defendant contends that the SCI is jurisdictionally defective. Specifically, defendantasserts that all material elements of attempted criminal possession of a weapon in the seconddegree were not set forth in the accusatory instrument as there was no reference to the weaponbeing loaded (see Penal Law § 265.03 [1] [b]). Although this issue survivesdefendant's unchallenged appeal waiver and guilty plea (see People v Brown, 163 AD3d 1269, 1271 [2018]), it is withoutmerit. The specific reference to the statute in the SCI is sufficient to constitute allegations of allthe elements of the crime charged in order to survive a jurisdictional challenge (see People vD'Angelo, 98 NY2d 733, 735 [2002]; People v Benn, 159 AD3d 1272, 1272 [2018], lv denied 32NY3d 935 [2018]).
Defendant also contends that the plea was not knowing, voluntary and intelligent because thefactual allocution did not establish each element of the crime. Essentially, this amounts to achallenge to the factual sufficiency of the plea allocution that, despite defendant's contention tothe contrary, is precluded by his unchallenged waiver of the right to appeal (see People v Maddaloni, 166 AD3d1235, 1235 [2018]; People vLetohic, 166 AD3d 1223, 1223 [2018], lv denied 32 NY3d 1174 [2019]). To theextent that defendant's contention constitutes a challenge to the voluntariness of the plea, whichsurvives the appeal waiver, it is nevertheless unpreserved for our review as the record does notreflect that defendant made an appropriate postallocution motion, and the narrow exception to thepreservation requirement is inapplicable as defendant made no statements that negated anessential element of the crime charged (see People v Lopez, 71 NY2d 662, 666 [1988];People v Gray, 162 AD3d1248, 1248 [2018]).
Garry, P.J., Devine, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.