Opinion
1055 KA 16-00797
12-23-2021
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. KEVIN A. ASHBY, DEFENDANT-APPELLANT.
ANTHONY F. BRIGANO, UTICA, FOR DEFENDANT-APPELLANT. BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
ANTHONY F. BRIGANO, UTICA, FOR DEFENDANT-APPELLANT.
BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, AND BANNISTER, JJ.
Appeal from a judgment of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), rendered April 15, 2016. The judgment convicted defendant upon a jury verdict of insurance fraud in the third degree and attempted grand larceny in the third degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia, insurance fraud in the third degree (Penal Law § 176.20), defendant contends that the indictment is jurisdictionally defective. We reject that contention. The failure of the first count of the indictment to recite all the elements of the crime in full "did not constitute a jurisdictional defect because that count specifically referred to the applicable section of the Penal Law" (People v Shanley, 15 A.D.3d 921, 922 [4th Dept 2005], lv denied 4 N.Y.3d 856 [2005]; see People v Taylor, 158 A.D.3d 1095, 1097 [4th Dept 2018], lv denied 32 N.Y.3d 941 [2018], reconsideration denied 32 N.Y.3d 1178 [2019], cert denied __ U.S. __, 140 S.Ct. 482 [2019]; cf. People v Mathis, 185 A.D.3d 1094, 1095 [3d Dept 2020]).
Although defendant further contends that each count of the indictment is legally insufficient because the counts do not set forth sufficient factual allegations, he failed to preserve his contention for our review (see People v Raad, 166 A.D.3d 907, 908 [2d Dept 2018], lv denied 33 N.Y.3d 952 [2019]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Defendant also contends that count one of the indictment was impermissibly amended (see generally CPL 200.70). Contrary to defendant's contention, we conclude that he was required to preserve that contention for our review (see People ex rel. Prince v Brophy, 273 NY 90, 99 [1937]; Mathis, 185 A.D.3d at 1097; People v Peals, 143 A.D.3d 535, 535 [1st Dept 2016], lv denied 28 N.Y.3d 1149 [2017]; cf. People v Ercole, 308 NY 425, 434 [1955]; People v Placido, 149 A.D.3d 1157, 1158 [3d Dept 2017]). Although past cases of this Court have not required preservation of such a contention (see e.g. People v Vickers, 148 A.D.3d 1535, 1537 [4th Dept 2017], lv denied 29 N.Y.3d 1088 [2017]; People v Powell, 153 A.D.2d 54, 58 [4th Dept 1989], lv denied 75 N.Y.2d 969 [1990]), they are no longer to be followed (cf. People v Hursh, 191 A.D.3d 1453, 1454 [4th Dept 2021], lv denied 37 N.Y.3d 957 [2021]; see generally People v Allen, 24 N.Y.3d 441, 449-450 [2014]). Here, defendant failed to preserve his contention for our review (see Prince, 273 NY at 99; Mathis, 185 A.D.3d at 1097), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).