Opinion
KA 04-02779.
April 28, 2006.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, J.), rendered October 26, 2004. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree.
JAMES A. LEONE, AUBURN, FOR DEFENDANT-APPELLANT.
JAMES B. VARGASON, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: Pigott, Jr., P.J., Hurlbutt, Gorski, Martoche and Hayes, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of criminal sale of a controlled substance in the third degree (Penal Law § 220.39), defendant contends that the indictment was jurisdictionally defective because the date of the offenses charged was incorrect. That contention is without merit. "[A] mistake with respect to date, time or place is a technical defect rather than `a jurisdictional defect vital to the sufficiency of the indictment'" ( People v. Cox, 275 AD2d 924, 925, lv denied 95 NY2d 962, quoting People v. Kepple, 98 AD2d 783, 783). Thus, "because defendant's contention raises only a technical defect rather than a jurisdictional one, that contention was forfeited by defendant's plea of guilty" ( Cox, 275 AD2d at 925; see People v. Hansen, 95 NY2d 227, 231; see also People v. Williams, 25 AD3d 927, 929). In any event, County Court properly granted the People's motion to amend the indictment to state the correct date of the offenses charged ( see CPL 200.70; People v. Davis, 21 AD3d 590, 592; People v. Butler, 272 AD2d 900, lv denied 95 NY2d 864).
The further contention of defendant that he was deprived of his constitutional right to a speedy trial is not forfeited by his guilty plea ( see People v. Taylor, 65 NY2d 1, 5), nor is it foreclosed by his waiver of the right to appeal ( see People v. Campbell, 97 NY2d 532, 535). Nevertheless, "[w]hile defendant did make a motion to dismiss the indictment under CPL 30.30, he made no motion to dismiss based on the contention he now advances . . . [and thus] has failed to preserve that contention for our review" ( People v. Cedeno, 52 NY2d 847, 848; see People v. Lieberman, 47 NY2d 931). In any event, that contention is without merit ( see People v. Gaylord, 210 AD2d 980, 981, lv denied 84 NY2d 1031; see generally People v. Taranovich, 37 NY2d 442, 444-445; People v. Walker, 2 AD3d 1454, lv denied 2 NY3d 808).
Finally, the waiver by defendant of the right to appeal encompasses his contention that the sentence is unduly harsh or severe ( see People v. Lococo, 92 NY2d 825, 827; People v. Joyner, 19 AD3d 1129).