Opinion
No. 13–319.
01-22-2016
The PEOPLE of the State of New York, Respondent, v. Dylan JONES, Defendant–Appellant.
Judgment of conviction (Neil E. Ross, J. on motion; Michelle A. Armstrong, J. at plea; Kevin B. McGrath, J. at sentencing), rendered November 19, 2012, affirmed.
In view of defendant's knowing waiver of his right to prosecution by information, the facial sufficiency of the accusatory instrument must be assessed under the pleading standard required of a misdemeanor complaint (see People v. Dumay, 23 NY3d 518 [2014] ). So viewed, the accusatory instrument was jurisdictionally valid because it described facts of an evidentiary nature establishing reasonable cause to believe that defendant was guilty of petit larceny (see Penal Law § 155.25 ) and criminal possession of stolen property in the fifth degree (see Penal Law § 165.40 ). In this connection, the factual portion of the misdemeanor complaint and supporting deposition alleged, inter alia, that a loss prevention agent at a specified GAP department store observed defendant “remove one brown bag from a shelf,” place the bag over his shoulder and proceed “outside the store in possession of the property without paying for it.” No additional evidentiary details were required for the People's pleading to provide “adequate notice to enable defendant to prepare a defense and invoke his protection against double jeopardy” (People v. Kasse, 22 NY3d 1142, 1143 [2014] ; see generally People v. Olivo, 52 N.Y.2d 309 [1981] ).
Defendant's motion to suppress merchandise recovered by the loss prevention agent was properly denied without a hearing because defendant, despite access to relevant information and ample opportunity, “failed to allege facts raising an issue as to state action” (People v. Manrique, 57 AD3d 265 [2008], lv denied 12 NY3d 760 [2009] ).
Defendant's argument that his guilty plea was invalid because he was not advised of all his constitutional rights is unpreserved, since defendant “could have sought relief from the sentencing court in advance of the sentence's imposition” (People v. Murray, 15 NY3d 725 [2010] ; see People v. Jackson, 123 AD3d 634 [2014], lv denied 25 NY3d 1202 [2015] ), and we decline to review this unpreserved claim in the interest of justice. As an alternative holding, we find the record as a whole establishes the voluntariness of the plea (People v. Conceicao, ––– NY3d ––––, 2015 N.Y. Slip Op 08615 [2015] ; People v. Sougou, ––– NY3d ––––, 2015 N.Y. Slip Op 08617 [2015] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur.