| People v Velazquez |
| 2021 NY Slip Op 03078 [194 AD3d 1181] |
| May 13, 2021 |
| Appellate Division, Third Department |
[*1](May 13, 2021)
| The People of the State of New York,Respondent, v David Velazquez, Appellant. |
Kathy Manley, Selkirk, for appellant.
Meagan K. Galligan, District Attorney, Monticello (Kristin L. Hackett of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Sullivan County (McGuire, J.),rendered June 30, 2017, convicting defendant upon his plea of guilty of the crimes of conspiracyin the second degree, criminal sale of a controlled substance in the second degree (two counts),criminal possession of a controlled substance in the first degree, criminal possession of acontrolled substance in the second degree and criminal possession of a weapon in the seconddegree.
In 2016, following an investigation into narcotics trafficking in Sullivan and OrangeCounties, defendant was indicted on the charges of conspiracy in the second degree (two counts),conspiracy in the fourth degree, criminal sale of a controlled substance in the third degree (threecounts), criminal sale of a controlled substance in the second degree (six counts), criminalpossession of a controlled substance in the first degree, criminal possession of a controlledsubstance in the second degree, criminal possession of marihuana in the fourth degree, criminallyusing drug paraphernalia in the second degree (three counts) and criminal possession of a weaponin the second degree. Defendant thereafter entered into a plea agreement in which he agreed toplead guilty to six counts of the indictment—namely, one count of conspiracy in thesecond degree, two counts of criminal sale of a controlled substance in the second degree, onecount of criminal possession of a controlled substance in the first degree, one count of criminalpossession of a controlled substance in the second degree and one count of criminal possessionof a weapon in the second degree—and waive his right to appeal in exchange for anaggregate prison term of 13 years, followed by five years of postrelease supervision.[FN*] County Court sentenceddefendant in accordance with the terms of the plea agreement, and defendant appeals.
Initially, defendant argues, and the People concede, that his combined oral and writtenwaiver of appeal was overbroad and consequently invalid (see People v Thomas, 34 NY3d 545, 557-559 [2019]; People v Deming, 190 AD3d1193, 1194 [2021]; People vBarthelmas, 190 AD3d 1160, 1160 [2021]). Defendant also challenges County Court'sgeographical jurisdiction over his conviction for criminal possession of a weapon in the seconddegree, arguing that the weapon was discovered in his home in Orange County and thatcomments he made during the allocution negated any jurisdictional predicate that may haveexisted. A defendant does not waive appellate review of geographical jurisdiction by pleadingguilty, "but since a guilty plea cuts off the People's opportunity to prove geographical jurisdictionat trial, a conviction should be reversed only where it affirmatively appears that geographicaljurisdiction could not have existed" (People v Kellerman, 102 AD2d 629, 631 [1984]).Here, because one or more of the overt acts committed in furtherance of the conspiracy occurredin Sullivan County (see Penal Law § 105.[*2]25 [1]; People v Sosnik, 77 NY2d 858, 860 [1991]),Sullivan County had geographical jurisdiction over the conspiracy count, as well as theobject/component crimes of the conspiracy, including criminal possession of a weapon in thesecond degree, regardless of whether they took place in Sullivan County (see CPL 20.40[1] [b]; Matter of Faraci v Firetog, 308 AD2d 423, 424 [2003], lv denied 100NY2d 516 [2003]; People v Manfredi, 166 AD2d 460, 464 [1990], lv denied 76NY2d 1022 [1990]). Defendant acknowledged during the plea allocution that one of hiscoconspirators sold him the weapon and that it was hidden with money and drugs in a wall in hishome. Contrary to defendant's contention, his assertions that he obtained the weapon prior toentering into the conspiracy and that he could not easily access it if someone broke into his homedid not affirmatively demonstrate that his possession of the weapon was not in furtherance of theconspiracy. As such, we reject defendant's claim that Sullivan County did not have geographicaljurisdiction over the charge of criminal possession of a weapon in the second degree (seeCPL 20.40 [1] [b]; Penal Law § 105.25 [1]).
Defendant failed to preserve his contention that his guilty plea was coerced or his challengeto the factual sufficiency of his allocution to criminal possession of a weapon in the seconddegree, as the record does not reflect that he made an appropriate postallocution motion, despitehaving an opportunity to do so prior to sentencing (see People v Scharborough, 189 AD3d 1964, 1965 [2020]; People v Cook, 150 AD3d 1543,1544 [2017]). Further, the narrow exception to the preservation requirement is inapplicable, asdefendant did not make any statements during the plea colloquy that cast doubt upon his guilt orotherwise called the voluntariness of his plea into question (see People v Lopez, 71 NY2d662, 666 [1988]; People v King, 166AD3d 1236, 1237 [2018]). With respect to defendant's claim that his allocution failed toestablish the operability element of criminal possession of a weapon in the second degree (seePeople v Longshore, 86 NY2d 851, 852 [1995]), "we note that the exception to thepreservation rule applies only where a recitation of facts casts significant doubt on a defendant'sguilt and not, as here, where 'the sufficiency of the articulation of the element ischallenged' " (People vMartinez-Velazquez, 89 AD3d 1318, 1319 [2011], quoting People vVonderchek, 245 AD2d 979, 980 [1997], lv denied 91 NY2d 945 [1998]; accord People v Teele, 92 AD3d972, 972 [2012]). Moreover, contrary to defendant's contention, knowledge of the weapon'soperability is not an element of criminal possession of a weapon in the second degree (see People v Parrilla, 27 NY3d400, 405 [2016]; People v Saunders, 85 NY2d 339, 341-342 [1995]).
To the extent that we have not addressed any of defendant's remaining contentions, they havebeen reviewed and found to be without merit.
Egan Jr., J.P., Lynch, Pritzker [*3]and Reynolds Fitzgerald,JJ., concur. Ordered that the judgment is affirmed.
Footnote *:Defendant also agreed to forfeitroughly $65,000, as well as certain assets.