| People v Morgan-Smith |
| 2020 NY Slip Op 02501 [182 AD3d 923] |
| April 30, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jeannie M. Morgan-Smith, Appellant. |
Craig Meyerson, Peru, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Taylor Fitzsimmons of counsel),for respondent.
Reynolds Fitzgerald, J. Appeal from a judgment of the County Court of WashingtonCounty (McKeighan, J.), rendered December 15, 2017, convicting defendant on her pleaof guilty of the crime of criminal possession of a controlled substance in the thirddegree.
Defendant waived indictment and agreed to be prosecuted by a superior courtinformation (hereinafter SCI) charging her with criminal possession of a controlledsubstance in the third degree. She pleaded guilty to this crime and waived her right toappeal. Under the terms of the plea agreement, she was to be sentenced to two years inprison, followed by one year of postrelease supervision. However, County Court adviseddefendant that it would not impose this sentence if the presentence investigation reportdisclosed information leading it to conclude that the sentence was inappropriate, inwhich case she would be permitted to withdraw her plea. Based upon the contents of thepresentence investigation report, County Court advised defendant that it would imposean enhanced sentence of four years in prison, followed by two years of postreleasesupervision, and offered her the opportunity to withdraw her plea. Defendant declined todo so and executed an amended waiver of the right to appeal. County Court, in turn,imposed the enhanced sentence, and defendant appeals.
Initially, defendant contends that the waiver of indictment and SCI omitted essentialinformation required by CPL 195.20, rendering the waiver of indictment invalid and theSCI jurisdictionally defective. In support of this claim, defendant points to the fact thatneither the waiver of indictment nor the SCI sets forth the approximate time of the crime,and the waiver of indictment also failed to set forth the place where it occurred. Whilewe acknowledge these deficiencies, we do not find that they mandate dismissal of theSCI and reversal of the judgment of conviction given our recent decisions in People v Shindler (179 AD3d1306, 1307 [2020]) and People v Elric YY., (179 AD3d 1304, 1305 [2020]), andthe Court of Appeals' decision in People v Lang (34 NY3d 545, 565-570 [2019]). As is relevant here, the Court ofAppeals found in Lang that the date, approximate time and place of the crime inthe waiver of indictment constituted non-elemental factual information, the omission ofwhich did not amount to a jurisdictional defect (see People v Lang, 34NY3d at 568-570). In view of this decision, weabandoned the standard enunciated in People v Busch-Scardino (166 AD3d 1314 [2018]) andconcluded in Shindler and Elric YY. that the omission of the approximatetime and place was not a jurisdictional defect rendering the waiver of indictmentinvalid.
Here, defendant was provided adequate notice of the crime charged based upon areading of the waiver of indictment and the SCI together (see People v Walley, 176AD3d 1513, 1514 [2019]), as well as the felony complaint, which set forth in detailthe nature of the crime and the approximate time and place where it occurred (seePeople v Lang, 34 NY3d at 570-571).Significantly, defendant did not raise any objection to the sufficiency of the waiver ofindictment or the SCI before County Court, or demand a bill of particulars. Therefore,the subject omissions are nonjurisdictional defects that were forfeited by defendant'sguilty plea (see People v Shindler, 179 AD3d at 1307; People v ElricYY., 179 AD3d at 1305).
Defendant further contends that County Court erroneously imposed an enhancedsentence. Initially, this claim is not precluded by defendant's amended appeal waiver.Such waiver is invalid as the record does not reveal that defendant understood theseparate and distinct nature of the right to appeal or was advised of the manyramifications of the amended waiver (see People v Alexander, 174 AD3d 1068, 1068 [2019],lv denied 34 NY3d 949 [2019]; People v Latifi, 171 AD3d 1351, 1351 [2019]).Nevertheless, under the circumstances presented, we find no error in the imposition ofthe enhanced sentence. "A sentencing court may not impose an enhanced sentence unlessit has informed the defendant of specific conditions that the defendant must abide by orrisk such enhancement, or [has] give[n] the defendant an opportunity to withdraw his orher plea before the enhanced sentence is imposed" (People v Denegar, 130 AD3d 1140, 1141 [2015] [internalquotation marks and citations omitted]; see People v Parker, 57 NY2d 136, 141[1982]; People v Tole, 119AD3d 982, 984 [2014]). Notwithstanding County Court's failure to clearly specifythe information in the presentence investigation report that would result in an enhancedsentence, it afforded defendant the opportunity to withdraw her plea prior to imposingsuch sentence (compare Peoplev Donnelly, 80 AD3d 797, 798 [2011]; People v Gantt, 63 AD3d 1379, 1380 [2009]). She clearlyindicated that she did not wish to withdraw her plea and, thereby, fully accepted theenhanced sentence as part of the plea agreement. Accordingly, we find no reason todisturb it.
Garry, P.J., Egan Jr., Lynch and Aarons, JJ., concur. Ordered that the judgment isaffirmed.