People v Feltz

2021 NY Slip Op 00054 [190 AD3d 1026]

January 7, 2021

Appellate Division, Third Department

As corrected through Wednesday, March 3, 2021

[*1]

The People of the State of New York,Respondent, v Ryan Feltz, Appellant.

Erin C. Morigerato, Albany, for appellant.

Joseph Stanzione, District Attorney, Catskill (Denise J. Kerrigan of counsel), forrespondent.

Egan Jr., J. Appeal from a judgment of the County Court of Greene County (Young, J.),rendered July 16, 2018, convicting defendant upon his plea of guilty of the crime of criminalpossession of a firearm.

After numerous loaded handguns were found secreted on property from which defendant hadbeen evicted, defendant, who was on probation, was charged with five counts of criminalpossession of a weapon in the third degree, as well as a violation of probation. Thereafter,defendant waived indictment and pleaded guilty to criminal possession of a firearm as charged ina superior court information and also admitted to violating the terms of his probation. Atsentencing, defendant submitted a pro se motion seeking an adjournment to replace defensecounsel, claiming that defense counsel was ineffective. County Court denied the motion for anadjournment and sentenced defendant, a second felony offender, in accordance with the terms ofthe plea agreement to 11/2 to 3 years in prison, to run concurrently with theresentence imposed in connection with the probation violation. Defendant appeals.

Initially, defendant contends that the waiver of indictment is invalid and the superior courtinformation is jurisdictionally defective for failure to set forth the approximate time of theoffense in compliance with CPL 195.20. However, the omission of such nonelementalinformation, to which defendant did not object, amounts to a technical—not ajurisdictional—defect and, therefore, his challenge was forfeited by his guilty plea (seePeople v Lang, 34 NY3d 545, 568-569 [2019]; People v Edwards, 181 AD3d 1054, 1055 [2020], lv denied35 NY3d 1026 [2020]). Notably, defendant makes no claim that he lacked notice of the specificcrime for which he waived prosecution by indictment, and the time of the crime is specifically setforth in the felony complaint (see People v Lang, 34 NY3d at 569-570; People v Cruz, 186 AD3d 932,933 [2020], lv denied 35 NY3d 1112 [2020]; People v Edwards, 181 AD3d at1055).

The record also reflects that defendant's waiver of his right to appeal was knowing, voluntaryand intelligent. The record establishes that defendant's appeal waiver was made a condition of hisplea agreement, County Court explained that his right to appeal was separate and distinct fromthe trial-related rights that he was forfeiting as part of his guilty plea and defendant affirmed thathe had no questions for his attorney in this regard and that he understood the ramificationsthereof. Accordingly, we find that defendant validly waived his right to appeal his conviction andsentence, thereby precluding his challenge to the severity of the agreed-upon sentence (see People v Carl, 188 AD3d1304, 1307 [2020]; People vBrunson, 185 AD3d 1300, 1300 [2020], lv denied 36 NY3d 928 [2020]; People v Weidenheimer, 181 AD3d1096, 1097 [2020]).

Defendant's challenge to the voluntariness of the plea is unpreserved for our review as therecord does not reflect [*2]that defendant made an appropriatepostallocution motion (see People vBrito, 184 AD3d 900, 901 [2020]; People v Vilbrin, 183 AD3d 1012, 1013 [2020], lv denied35 NY3d 1049 [2020]). Further, the narrow exception to the preservation requirement is notimplicated as the record does not disclose any statement made by defendant during the pleacolloquy or at sentencing that cast doubt upon his guilt or called into question the voluntarinessof the plea (see People v Sydlosky,181 AD3d 1094, 1094-1095 [2020]). Likewise, defendant's contention that he was deniedthe effective assistance of counsel is unpreserved absent an appropriate postallocution motion (see People v Harrington, 185 AD3d1301, 1302 [2020]; People vMorehouse, 183 AD3d 1180, 1183 [2020], lv denied 35 NY3d 1068 [2020];People v Vilbrin, 183 AD3d at 1013). Defendant's remaining contentions, to the extentthat they are not specifically addressed, have been examined and are without merit.

Garry, P.J., Mulvey and Colangelo, JJ., concur. Ordered that the judgment is affirmed.