Opinion
03-08-2017
The PEOPLE, etc., respondent, v. Tyreck A. DOUGLAS, Jr., also known as "Little," appellant. (Appeal No. 1) The People, etc., respondent, v. Tyreck A. Douglas, Jr., appellant. (Appeal No. 2).
Carol Kahn, New York, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.
Carol Kahn, New York, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, HECTOR D. LaSALLE, and BETSY BARROS, JJ.
Appeals by the defendant from (1) a judgment of the County Court, Dutchess County (Greller, J.), rendered August 21, 2014, convicting him of criminal sale of a controlled substance in the third degree under Indictment No. 77/13, upon his plea of guilty, and imposing sentence, and (2) a judgment of the same court, also rendered August 21, 2014, convicting him of criminal possession of a weapon in the second degree under Superior Court Information No. 175/14, upon his plea of guilty, and imposing sentence.
ORDERED that the judgments are affirmed.
The defendant contends that both of his pleas of guilty were not knowing, voluntary, and intelligent because he had an active mental illness at the time of the pleas, he was equivocal about his decision to plead guilty, and the County Court failed to fully explain his constitutional rights. However, this contention is unpreserved for appellate review, because the defendant did not move to vacate his pleas or otherwise raise the issue in the County Court (see CPL 220.60[3] ; People v. Peque, 22 N.Y.3d 168, 182, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668 ; People v. Jackson, 114 A.D.3d 807, 979 N.Y.S.2d 704 ; People v. Ovalle, 112 A.D.3d 971, 977 N.Y.S.2d 401 ; People v. Devodier, 102 A.D.3d 884, 958 N.Y.S.2d 220 ). In any event, this contention is without merit. Although the defendant initially appeared to be reluctant at the beginning of the plea proceeding on the weapon possession charge, the court confirmed that he was pleading guilty voluntarily and that he understood the nature of that plea (see People v. Perez, 82 A.D.3d 1451, 918 N.Y.S.2d 754 ; People v. Swindell, 72 A.D.3d 1340, 1341, 898 N.Y.S.2d 380 ). The court then adequately advised the defendant with respect to both pleas of guilty of the rights he was surrendering by pleading guilty, and the record affirmatively demonstrates the defendant's understanding and waiver of these constitutional rights, and the entry of a knowing, voluntary, and intelligent plea of guilty (see People v. Harris, 61 N.Y.2d 9, 19–20, 471 N.Y.S.2d 61, 459 N.E.2d 170 ; People v. Sirico, 135 A.D.3d 19, 22, 18 N.Y.S.3d 430 ; People v. Isaiah S., 130 A.D.3d 1081, 13 N.Y.S.3d 840 ; People v. Jackson, 114 A.D.3d at 807–808, 979 N.Y.S.2d 704 ).
Furthermore, while the defendant had been prescribed medications by a psychiatrist, there is no basis in the record to support the conclusion that, at the time of the plea proceeding, the defendant lacked the capacity to understand the nature of the proceeding or the consequences of his pleas (see People v. DeBenedetto, 120 A.D.3d 1428, 1429, 992 N.Y.S.2d 370 ). During the plea colloquy, the defendant indicated that he was clear headed and understood everything that was happening.
The defendant's contention that the felony complaint charging him with criminal possession of a weapon in the second degree was jurisdictionally defective is also without merit. An accusatory instrument charging that offense need not allege a previous conviction in order to be sufficient as that is not an element of the offense (see Penal Law § 265.03 ; People v. Jones, 22 N.Y.3d 53, 59, 977 N.Y.S.2d 739, 999 N.E.2d 1184 ). As such, the allegation that the defendant's youthful offender adjudication was a previous conviction was a minor inaccuracy and did not render the felony complaint jurisdictionally defective (see People v. Hansen, 95 N.Y.2d 227, 231, 715 N.Y.S.2d 369, 738 N.E.2d 773 ). Further, the waiver of indictment and Superior Court Information properly alleged that the defendant's conviction for criminal sale of a controlled substance in the third degree was a previous conviction (see Penal Law § 265.03 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).