Opinion
110730
12-15-2022
The PEOPLE of the State of New York, Respondent, v. Christopher DEVARNNE–WALLS, Appellant.
Brian M. Callahan, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Brian M. Callahan, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Lynch, J.P., Clark, Pritzker, Ceresia and Fisher, JJ.
MEMORANDUM AND ORDER
Pritzker, J. Appeal from a judgment of the County Court of Schenectady County (Matthew J. Sypniewski, J.), rendered June 7, 2018, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of stolen property in the third degree.
Defendant waived indictment and was charged in a superior court information with attempted criminal possession of stolen property in the third degree. Defendant pleaded guilty as charged and, as part of the plea agreement, he was required to waive the right to appeal. Pursuant to the plea agreement, sentencing was adjourned and defendant was provided an opportunity to participate in drug court. If defendant successfully completed the program, he was to be sentenced to five years of probation; if he was unsuccessful, he could be sentenced to up to 1 to 4 years in prison. Defendant was subsequently terminated from drug court and, after denying defendant's request for youthful offender status, County Court sentenced him to 1 to 3 years in prison. Defendant appeals.
Defendant's contention that his plea was not knowing, intelligent and voluntary because County Court did not ensure that he was aware of the constitutional trial-related rights that he was forfeiting by pleading guilty is unpreserved for our review, as the record does not disclose that he made an appropriate postallocution motion and the narrow exception to the preservation requirement is not implicated (see People v. McCoy, 198 A.D.3d 1021, 1022–1023 [3d Dept. 2021], lv denied 37 N.Y.3d 1162, 160 N.Y.S.3d 724, 181 N.E.3d 1152 [2022] ; People v. Howard, 190 A.D.3d 1108, 1108–1109, 138 N.Y.S.3d 751 [3d Dept. 2021] ). Defendant also contends that the waiver of indictment is jurisdictionally defective because it does not denote the approximate time and place of the offense in accordance with CPL 195.20. Notably, "the omission of nonelemental information, to which defendant did not object, does not render the waiver of indictment jurisdictionally defective and, therefore, any such challenge was forfeited by his guilty plea" ( People v. Minaya, 206 A.D.3d 1161, 1162, 169 N.Y.S.3d 728 [3d Dept. 2022] ; see People v. Lang, 34 N.Y.3d 545, 568–569, 144 N.E.3d 970 [2019] ; People v. Moses, 184 A.D.3d 910, 911, 123 N.Y.S.3d 551 [3d Dept. 2020], lv denied 35 N.Y.3d 1096, 131 N.Y.S.3d 308, 155 N.E.3d 801 [2020] ). Further, "defendant made no claim that he lacked notice of the specific crime for which he waived prosecution by indictment" ( People v. Minaya, 206 A.D.3d at 1162, 169 N.Y.S.3d 728 [internal quotation marks, brackets and citation omitted]; see People v. Lang, 34 N.Y.3d at 569, 144 N.E.3d 970 ; People v. Moses, 184 A.D.3d at 911, 123 N.Y.S.3d 551 ). Lastly, defendant's argument that County Court abused its discretion by declining to grant him youthful offender status is foreclosed by his unchallenged appeal waiver (see People v. Pacherille, 25 N.Y.3d 1021, 1024, 32 N.E.3d 393 [2015] ; People v. Buckman, 203 A.D.3d 1243, 1243, 160 N.Y.S.3d 669 [3d Dept. 2022] ).
Lynch, J.P., Clark, Ceresia and Fisher, JJ., concur.
ORDERED that the judgment is affirmed.