| People v Carl |
| 2020 NY Slip Op 06314 [188 AD3d 1304] |
| November 5, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Alajhed Carl, Appellant. |
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Warren County (Hall Jr., J.),rendered July 5, 2018, convicting defendant upon his pleas of guilty of the crimes of tamperingwith physical evidence and attempted robbery in the third degree.
In July 2018, defendant pleaded guilty to tampering with physical evidence in satisfaction ofa three-count indictment and entered an Alford plea to the reduced charge of attemptedrobbery in the third degree in connection with a separate offense. As part of the globaldisposition, defendant waived indictment on the attempted robbery charge and agreed to beprosecuted by a superior court information (hereinafter SCI). He also executed oral and writtenappeal waivers but reserved the right to challenge County Court's determination on hisapplication for youthful offender status.[FN1] County Court determined that youthful offenderstatus was not appropriate and, in accordance with the agreement, imposed concurrent prisonterms of 1 to 3 years upon each conviction. Defendant appeals.
Initially, defendant contends that the waiver of indictment is invalid and the SCI isjurisdictionally defective because they failed to set forth the approximate time and location of theconduct underlying the attempted robbery charge, as required by CPL 195.20. However, theomission of such "non-elemental factual information" does not constitute a jurisdictional defect(People v Lang, 34 NY3d 545, 569 [2019]; see People v King, 184 AD3d 909, 910 [2020]). Moreover, the SCIand waiver, together with the felony complaint that included the approximate time and specificaddress of the crime, provided defendant with adequate "notice of the charges upon which theprosecution by SCI would proceed" (People v Lang, 34 NY3d at 569). Given thesecircumstances, and because the record does not reveal that defendant objected to the sufficiencyof the waiver or SCI,[FN2]defendant's challenge to the waiver of indictment and the SCI is forfeited by his guilty pleas (see People v Cruz, 186 AD3d 932,933 [2020]; People v Moses, 184AD3d 910, 911 [2020], lv denied 35 NY3d 1096 [2020]).
Also without merit is defendant's challenge to the waiver of indictment on the ground that itcontained a different offense than that listed in the felony complaint. CPL 195.20 provides that awaiver of indictment must contain "each offense to be charged in the [SCI]," which "may includeany offense for which the defendant was held for action of a grand jury and any offense oroffenses properly joinable." A defendant is "held for the action of a [g]rand [j]ury on both theoffense charged in the felony complaint as well as its lesser included offenses" (People v Diego, 172 AD3d 1776,1777 [2019] [internal quotation marks and citations omitted]; see People v Pierce, 14 NY3d 564, 568 [2010]). Accordingly, "adefendant may waive indictment and plead guilty to an SCI that names a different offense fromthat charged in the felony complaint only when the crime named in the SCI is a lesser includedoffense of the original charge" (People v Diego, 172 AD3d at 1777 [internal quotationmarks and citations omitted]). Here, a felony complaint charged defendant with robbery in thefirst degree under Penal Law § 160.15 (4). The waiver of indictment, by contrast,stated that defendant was held for action of the Warren County grand jury upon the reducedcharge of attempted robbery in the third degree and he consented to being prosecuted by an SCIon that charge. Attempted robbery in the third degree as charged in the SCI (see PenalLaw §§ 110.00, 160.05) is a lesser included offense of robbery in the firstdegree as charged in the felony complaint (see CPL 1.20 [37]; see also People v James, 11 NY3d886, 888 [2008]). Thus, the waiver of indictment is not jurisdictionally defective.
Defendant next contends that his guilty pleas were not knowing, voluntary and intelligentbecause County Court did not apprise him of all the trial-related constitutional rights that hewould be forfeiting by pleading guilty, an argument that survives his appeal waiver (see People v Weidenheimer, 181 AD3d1096, 1097 [2020]). Although a defendant's challenge to the voluntariness of a plea isordinarily required to be preserved in an appropriate postallocution motion (see CPL220.60 [3]), here, defendant had no practical ability to file such a motion insofar as the pleas andsentencing occurred in the same proceeding (see People v Tyrell, 22 NY3d 359, 364 [2013]; People v Griffin, 165 AD3d 1316,1317 [2018]). Nor could he have moved to vacate the judgment pursuant to CPL 440.10 becausethe alleged error was "clear from the face of the trial record" (People v Tyrell, 22 NY3dat 364 [internal quotation marks and citations omitted]). Accordingly, defendant's claim isreviewable. Nevertheless, we conclude that it lacks merit.
To constitute a knowing, voluntary and intelligent plea, "the record must affirmativelydemonstrate that the defendant waived his or her constitutional trial-relatedrights—namely, the privilege against self-incrimination, the right to a jury trial and theright to be confronted by witnesses" (People v Demkovich, 168 AD3d 1221, 1221 [2019]). Here, CountyCourt advised defendant that, by pleading guilty, he would be giving up the rights to a jury trial,to remain silent, to have the People prove the charges against him beyond a reasonable doubt andto present a defense. Although County Court failed to inform defendant that he would also begiving up the right to confront the People's witnesses, the relevant circumstances surrounding thepleas—including the seriousness of the crimes, the actual competent participation bycounsel and the timing of the pleas (seePeople v Conceicao, 26 NY3d 375, 382-383 [2015])—reflect that they wereentered into knowingly, voluntarily and intelligently. To that end, the record reflects a consideredplea process during which defendant had ample time to contemplate the pleas, as seven monthshad passed between the People's initial plea offer to the same charges in December 2017 and thedate the pleas were ultimately accepted in July 2018. Moreover, defendant assured County Courtduring the plea proceedings that he had adequate time to confer with counsel and was satisfiedwith his representation. The record independently confirms active participation by counselthroughout the entirety of the proceedings. On this record, we are satisfied that defendant enteredinto knowing, voluntary and intelligent pleas (see People v Conceicao, 26 NY3d at382-383; People v Sullivan, 153AD3d 1519, 1520-1521 [2017], lv denied 30 NY3d 1064 [2017]).
Defendant's appeal waiver is similarly valid. County Court informed defendant that an appealwaiver was a condition of the plea agreement, explained the nature of the right to appeal and theconsequences of waiving that right, and informed defendant of the separate and distinct nature ofthe right. Defendant affirmed that he had discussed the waiver with counsel and understood itsramifications. Accordingly, we conclude that defendant knowingly, intelligently and voluntarilywaived the right to appeal, thereby foreclosing his challenge to the sentence as harsh andexcessive (see People v Lopez, 6NY3d 248, 256 [2006]; People vAndino, 185 AD3d 1218, 1218-1219 [2020]).
Defendant further contends that County Court abused its discretion in denying him youthfuloffender treatment, a decision that "rests within the sound exercise of the sentencing court'sdiscretion" (People v Martz, 181AD3d 979, 980-981 [2020] [internal quotation marks and citations omitted], lvdenied 35 NY3d 1047 [2020]). Here, County Court considered all of the relevant factors,noting that the Probation Department recommended against youthful offender status anddefendant had been arrested numerous times in a two-year period and had thrice been adjudicateda youthful offender for prior criminal history, some of which involved violence. Under thesecircumstances, the court did not abuse its discretion in denying defendant's request to beadjudicated a youthful offender (see id. at 981; People v Turner, 174 AD3d 1123, 1126-1127 [2019], lvdenied 34 NY3d 985 [2019]). Furthermore, we decline to exercise our interest of justicejurisdiction, as "we do not find that certain mitigating factors regarding defendant's personal andfamily history warrant a substitution of our own discretion to grant defendant youthful offenderstatus" (People v Soule, 162 AD3d1407, 1408 [2018] [internal quotation marks and citations omitted], lv denied 32NY3d 1068 [2018]).
Finally, defendant's challenge to the June 2018 preplea investigation report (hereinafter PPI)used by County Court in its consideration of youthful offender status is unpreserved for ourreview, as defense counsel did not raise an objection to the PPI at sentencing other than tochallenge the recommendation against youthful offender status (see People v Ashley, 166 AD3d1169, 1170 [2018]). In any event, County Court did not err in relying on thePPI—prepared only one month prior to the plea allocution—in denying defendantyouthful offender status. Although the PPI contained information from an earlier PPI prepared inMay 2017, it also included updated information and otherwise contained all of the requirementsof the type of presentence investigation report that must be ordered upon the conviction of aneligible youth (see CPL 390.30 [1]; 720.20 [1]; People v Johnston, 32 AD3d 556, 556 [2006]). Defendant also hadan opportunity to provide updated information for sentencing consideration. Accordingly, wefind that County Court appropriately relied on the June 2018 PPI in considering whether youthfuloffender status was appropriate.
Garry, P.J., Egan Jr., Mulvey and Reynolds Fitzgerald, JJ., concur. Ordered that the judgmentis affirmed.
Footnote 1:The agreement also requireddefendant to plead guilty to a charge of criminal possession of stolen property that was pendingin Glens Falls City Court, for which he would receive time-served or a concurrent sentence.
Footnote 2:Although defendant requested abill of particulars, he entered guilty pleas before it was served.