| People v Sablan |
| 2019 NY Slip Op 07952 [177 AD3d 1024] |
| November 7, 2019 |
| Appellate Division, Third Department |
[*1](November 7, 2019)
| The People of the State of New York,Respondent, v Jennifer Sablan, Appellant. |
G. Scott Walling, Slingerlands, for appellant, and appellant pro se.
Letitia James, Attorney General, New York City (Paul B. Lyons of counsel), forrespondent.
Mulvey, J. Appeals (1) from a judgment of the Supreme Court (Breslin, J.), renderedOctober 11, 2016 in Albany County, convicting defendant upon her plea of guilty of thecrime of attempted criminal sale of a controlled substance in the third degree, and (2)from a judgment of said court, rendered February 8, 2017 in Albany County, whichresentenced defendant.
Defendant and her 20 codefendants were charged in a 263-count indictment withvarious crimes stemming from a widespread conspiracy to distribute heroin throughoutthe state. Specifically, defendant was charged with conspiracy in the second degree,criminal sale of a controlled substance in the second degree (five counts), criminal sale ofa controlled substance in the third degree and criminal possession of a controlledsubstance in the third degree. In full satisfaction of the charged crimes, defendant agreedto plead guilty to the reduced charge of attempted criminal sale of a controlled substancein the third degree with the understanding that she would be sentenced as a second felonyoffender to a prison term of no more than seven years followed by five years ofpostrelease supervision. The plea agreement, which required defendant to waive her rightto appeal, was contingent upon defendant cooperating in the prosecution of hercodefendants; absent such cooperation, defendant could be sentenced to up to nine yearsin prison. Defendant pleaded guilty and the matter was adjourned for sentencing. Uponbeing apprised that defendant refused to testify against her codefendants, Supreme Courtsentenced defendant as a second felony offender to a prison term of nine years followedby five years of postrelease supervision. After discovering that the period of postreleasesupervision imposed was unauthorized, Supreme Court resentenced defendant to a prisonterm of nine years followed by 2
We affirm. Defendant initially contends that Supreme Court erred in sentencing heras a second felony offender because her out-of-state residential burglary conviction wasnot the equivalent of a felony in New York (see Penal Law § 70.06[1] [b] [i]). Although defendant's argument survives her unchallenged waiver of the rightto appeal because it implicates the legality of her sentence, "such an argument must bepreserved at the trial level, where the 'production and examination of foreign accusatoryinstruments and, conceivably, the resolution of evidentiary disputes, all in the context ofcomparisons with the law of other jurisdictions,' may occur" (People v Murdie, 134 AD3d1353, 1354 [2015], quoting People v Samms, 95 NY2d 52, 57 [2000]).Defendant did not contest the predicate felony statement at sentencing, and defensecounsel agreed that defendant's out-of-state residential burglary conviction wouldconstitute a violent felony in New York (see People v Taylor, 144 AD3d 1317, 1319 [2016], lvdenied 28 NY3d 1151 [2017]; People v Murdie, 134 AD3d at 1354; People v Johnson, 133 AD3d1028, 1029 [2015]). "Although there is a narrow exception to the preservation rulepermitting appellate review when a sentence's illegality is readily discernible from therecord, this case does not fall within that narrow exception because resolution of thequestion [of] whether the [out-of-state] conviction is the equivalent of a New Yorkfelony requires resort to outside facts, documentation or foreign statutes" (People v Lopez, 164 AD3d1625, 1625-1626 [2018] [internal quotation marks, brackets, ellipsis and citationsomitted], lv denied 32 NY3d 1174 [2019]; see People v Diaz, 115 AD3d 483, 484 [2014], lvdenied 23 NY3d 1036 [2014]). Finally, given that defendant has a viable avenue ofrelief—namely, a motion to vacate her sentence pursuant to CPL 440.20(1)—we decline to take corrective action in the interest of justice (see People vLopez, 164 AD3d at 1626). Defendant's related ineffective assistance of counselclaim implicates matters outside of the record and, therefore, is more appropriatelyaddressed via a CPL article 440 motion (see People v Diaz, 115 AD3d at484).
The arguments raised in defendant's pro se brief are unpersuasive. The pleaagreement contemplated that defendant would plead guilty to the reduced charge ofattempted criminal sale of a controlled substance in the third degree as charged in count15 of the indictment, which accused defendant of acting in concert with a particularcodefendant to sell heroin in the City of Albany on December 29, 2015. During the pleacolloquy, however, Supreme Court recited the date set forth in count 40 of theindictment, which accused defendant of acting in concert with the same codefendant to"sell one or more preparations, compounds, mixtures or substances containing. . . heroin" in the City of Albany on January 3, 2016. Defendant now arguesthat Supreme Court's misstatement rendered the underlying indictment jurisdictionallydefective. We disagree.
"An indictment is rendered jurisdictionally defective only if it does not charge thedefendant with the commission of a particular crime, by, for example, failing to allegeevery material element of the crime charged, or alleging acts that do not equal a crime atall" (People v Thacker, 173AD3d 1360, 1361 [2019] [internal quotation marks and citations omitted], lvdenied 34 NY3d 938 [2019]; see People v Park, 163 AD3d 1060, 1064 [2018]; People v Williams, 155 AD3d1253, 1254 [2017], lv denied 31 NY3d 1089 [2018]). Contrary todefendant's assertion, she did not plead guilty to a nonexistent crime, nor did she pleadguilty to a crime that was not a lesser included offense of a crime charged in theindictment. Defendant was charged with criminal sale of a controlledsubstance—albeit to different degrees—under both count 15 and count 40of the indictment, and she pleaded guilty to a valid lesser included offense thereof. As aresult, defendant's argument essentially distills to a claim "that the indictment and [her]factual allocution did not match" (People v Cepeda, 29 AD3d 491, 492 [2006], lvdenied 7 NY3d 810 [2006]), which constitutes a nonjurisdictional and technicaldefect subject to the preservation requirement (see generally People v Conceicao, 26 NY3d 375, 382[2015]; People v Small, 166AD3d 1237, 1238 [2018]).
To the extent that defendant's pro se brief may be read as challenging the factualsufficiency of her plea, such claim is precluded by her unchallenged appeal waiver (see People v Hummel-Parker,171 AD3d 1397, 1398 [2019]; People v Haverly, 161 AD3d 1483, 1484 [2018], lvdenied 32 NY3d 938 [2018]); any assertion that the resulting plea was involuntary isunpreserved for our review in the absence of an appropriate postallocution motion, andthe narrow exception to the preservation requirement is inapplicable (see People v Castro, 170 AD3d1286, 1287-1288 [2019], lv denied 33 NY3d 1029 [2019]; People v Gumbs, 169 AD3d1119, 1119 [2019], lv denied 33 NY3d 1105 [2019]). Defendant's pro seineffective assistance of counsel claim—to the degree that it impacts upon thevoluntariness of her plea—is similarly unpreserved (see People v Muller, 159AD3d 1232, 1232 [2018]), and her assertions that defense counsel failed to properlyinvestigate her case and research her prior criminal history implicate matters outside ofthe record that are more properly the subject of a CPL article 440 motion (see People v Moore, 169 AD3d1110, 1112 [2019], lv denied 33 NY3d 979 [2019]). Defendant's remainingpro se claims have been examined and found to be lacking in merit.
Garry, P.J., Devine and Aarons, JJ., concur. Ordered that the judgments areaffirmed.