Opinion
665 KA 12-00688
06-12-2015
The PEOPLE of the State of New York, Respondent, v. Glenn E. SIMS, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Glenn E. Sims, Defendant–Appellant Pro Se. Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant.
Glenn E. Sims, Defendant–Appellant Pro Se.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of Counsel), for Respondent.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, SCONIERS, AND WHALEN, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him upon his plea of guilty of course of sexual conduct against a child in the first degree (Penal Law § 130.75[1][b] ). We agree with defendant that the waiver of the right to appeal is invalid inasmuch as the purported waiver was obtained at sentencing, and there is no indication that Supreme Court obtained a knowing and voluntary waiver of that right at the time of the plea (see People v. Pieper, 104 A.D.3d 1225, 1225, 960 N.Y.S.2d 677 ). We nevertheless reject defendant's contention that the sentence is unduly harsh or severe.
Defendant's contention in his pro se supplemental brief that the indictment was defective for failing to give sufficient specificity with respect to the time frames for the alleged crimes is waived by his plea of guilty (see CPL 200.50[7][a] ; People v. Young, 100 A.D.3d 1186, 1187–1188, 954 N.Y.S.2d 244, lv. denied 21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 ; People v. Riley, 267 A.D.2d 1072, 1073, 700 N.Y.S.2d 910 ; cf. People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 ). In any event, “[w]here, as here, [a] crime charged in the indictment is a continuing offense, ‘the usual requirements of specificity with respect to time do not apply’ ” (People v. Errington, 121 A.D.3d 1553, 1554, 993 N.Y.S.2d 839 ), and we conclude that the time frames recited in the indictment were specific enough to satisfy the requirements of due process (see id.; People v. Muhina, 66 A.D.3d 1397, 1398, 885 N.Y.S.2d 809, lv. denied 13 N.Y.3d 909, 895 N.Y.S.2d 323, 922 N.E.2d 912 ). Defendant's further contention in his pro se supplemental brief that he was denied effective assistance of counsel is also without merit. Defendant made “ ‘no showing that the plea bargaining process was infected by any allegedly ineffective assistance or that [he] entered the plea because of his attorney [’]s allegedly poor performance' ” (People v. Granger, 96 A.D.3d 1669, 1670, 947 N.Y.S.2d 310, lv. denied 19 N.Y.3d 1102, 955 N.Y.S.2d 558, 979 N.E.2d 819 ; see People v. Gerald, 103 A.D.3d 1249, 1250–1251, 959 N.Y.S.2d 362 ). Finally, we reject defendant's contention in his pro se supplemental brief that the court erred in failing to listen to his statements in recorded phone calls before issuing its decision after the Huntley hearing. Inasmuch as there was no showing that the content of defendant's statements was relevant to the issue of voluntariness, there was no error (see People v. Rutley, 57 A.D.3d 1497, 1497, 869 N.Y.S.2d 842, lv. denied 12 N.Y.3d 821, 881 N.Y.S.2d 28, 908 N.E.2d 936 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.