People v O'Connor (Michael)

Sep 13, 2012
2010-1477 W CR
Versions:36 Misc 3d 159(A)
2012 NY Slip Op 51813(U)

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 13, 2012

PRESENT: : LaCAVA, J.P., NICOLAI and LaSALLE, JJ

The People of the State of New York, Respondent, — against Michael O‘Connor, Appellant.

Appeal from a judgment of the City Court of Yonkers, Westchester County (Thomas R. Daly, J.), rendered May 25, 2010. The judgment convicted defendant, upon his plea of guilty, of two counts of criminal mischief in the fourth degree.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged in a misdemeanor information with two counts of criminal mischief in the fourth degree (Penal Law § 145.00), in that he intentionally damaged the side view mirror of two specified vehicles. Defendant subsequently pleaded guilty to both counts of criminal mischief in the fourth degree. On appeal, defendant challenges the facial sufficiency of the accusatory instrument and the sufficiency of the plea allocution.

As a preliminary matter, we address the People‘s threshold contention that, as part of his guilty plea, defendant waived his right to appeal.

A defendant‘s jurisdictional challenge to an accusatory instrument survives both a guilty plea and a waiver of the right to appeal (People v Oliveri, 49 AD3d 1208, 1209 [2008]; see People v Lopez, 6 NY3d 248, 255 [2006]; People v Hansen, 95 NY2d 227, 230-231 [2000]; People v June, 30 AD3d 1016, 1017 [2006]), and, thus, we review the issue on the merits.

The accusatory instrument was facially sufficient. Defendant‘s guilty plea waived any hearsay defect in the instrument (People v Casey, 95 NY2d 354 [2000]). Affording the allegations of the factual portion of the accusatory instrument, as supplemented by the supporting depositions, the “fair and not overly restrictive or technical reading” to which they are entitled (People v Casey, 95 NY2d at 360), we find that the allegations suffice to support the charges. We note that a defendant‘s intent can be inferred from the nature of his actions (see People v Bracey, 41 NY2d 296, 301 [1977]).

Defendant‘s waiver of his right to appeal is effective with respect to defendant‘s remaining contention, so long as defendant voluntarily, knowingly, and intelligently waived his right to appeal as part of a bargained-for plea agreement (People v Russell, 60 AD3d 706 [2009]; see People v Ramos, 7 NY3d 737, 738; People v Kemp, 94 NY2d 831, 833 [1999]). Here, defendant did not move to withdraw his plea or vacate the judgment of conviction on that basis (People v Lopez, 71 NY2d 662, 666 [1988]; see People v Glynn, 73 AD3d 1290, 1291 [2010]; see also People v Smith, 57 AD3d 1237 [2008]). Moreover, defendant did not make any statements during the plea allocution that cast doubt on his guilt or otherwise called into question the voluntariness of his plea (see People v Lopez, 71 NY2d at 666). Consequently, the record reflects that defendant‘s plea and waiver were knowingly, voluntarily and intelligently made.

Accordingly, the judgment of conviction is affirmed.

LaCava, J.P., Nicolai and LaSalle, JJ., concur.

Decision Date: September 13, 2012