People v. WilliamsPeople v. Williams
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This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: November 16, 2017
Calendar Date: October 13, 2017
Before: Peters, P.J., Garry, Devine, Clark and Aarons, JJ.
Stephen W. Herrick, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), for respondent.
Peters, P.J.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Breslin, J.), rendered October 5, 2015 in Albany County, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.
Defendant was charged in an indictment with criminal sale of a controlled substance in the third degree. He thereafter agreed to plead guilty as charged in satisfaction of that indictment and two other pending indictments, and waived his right to appeal. Supreme Court sentenced defendant, as a second felony offender, to 11 years in prison to be followed by three years of postrelease supervision, with that sentence to run
Defendant now appeals.
We affirm. Initially, we find that defendant‘s waiver of the right to appeal was valid. Supreme Court distinguished the right to appeal from those rights automatically forfeited by pleading guilty, and defendant affirmed his understanding thereof and agreed to waive the right to appeal. Defendant then executed a written appeal waiver in open court after discussing the waiver with counsel. In our view, defendant knowingly, intelligently and voluntarily waived the right to appeal his conviction and sentence (see People v Mahon, 148 AD3d 1303, 1303 [2017]; People v Samuel, 143 AD3d 1012, 1012 [2016]). Defendant‘s valid appeal waiver precludes his claim that the sentence was harsh and excessive (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Caldwell, 148 AD3d 1468, 1468 [2017]).
Defendant‘s contention that his plea was not knowing, intelligent and voluntary is unpreserved for our review, as the record does not reflect that he made an appropriate postallocution motion (see People v McCrae, 150 AD3d 1328, 1329 [2017], lv denied 29 NY3d 1093 [2017]; People v Mann, 140 AD3d 1532, 1533 [2016]). Moreover, defendant made no statements during the plea colloquy that were inconsistent with his guilt or otherwise called into question the voluntariness of his plea so as to trigger the narrow exception to the preservation rule (see People v Cox, 146 AD3d 1154, 1154 [2017]; People v Taylor, 144 AD3d 1317, 1318 [2016], lvs denied 28 NY3d 1144, 1151 [2017]).
We reject defendant‘s contention that the indictment was jurisdictionally defective. “[A]n indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime” (People v Iannone, 45 NY2d 589, 600 [1978]; see People v Franklin, 146 AD3d 1082, 1083-1084 [2017], lvs denied 29 NY3d 946, 948 [2017]). “[W]here an indictment count incorporates by reference the statutory provision applicable to the crime intended to be charged, it has been repeatedly held that this is sufficient to apprise the defendant of the charge and, therefore, renders the count jurisdictionally valid” (People v Brown, 75 AD3d 655, 656 [2010] [internal quotation marks and citation omitted]; accord People v Griswold, 95 AD3d 1454, 1455 [2012], lv denied 19 NY3d 997 [2012]). Insofar as the indictment references the specific section of the Penal Law under which defendant has been charged, we cannot conclude that the indictment was jurisdictionally defective. To the extent that defendant challenges the factual sufficiency of the indictment, this constitutes
Finally, defendant‘s contention that County Court failed to comply with the provisions of
Garry, Devine, Clark and Aarons, JJ., concur.
ORDERED that the judgment is affirmed.