Opinion
08-23-2017
The PEOPLE of the State of New York, Respondent, v. Kendel A. JORDAN, Defendant–Appellant.
Leanne Lapp, Public Defender, Canandaigua (Cara A. Waldman of Counsel), for defendant-appellant. Kendel A. Jordan, defendant-appellant pro se. R. Michael Tantillo, District Attorney, Canandaigua, for respondent.
Leanne Lapp, Public Defender, Canandaigua (Cara A. Waldman of Counsel), for defendant-appellant.
Kendel A. Jordan, defendant-appellant pro se.
R. Michael Tantillo, District Attorney, Canandaigua, for respondent.
MEMORANDUM:On appeal from a judgment convicting him upon a plea of guilty of two counts of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1] ), defendant contends in his pro se supplemental brief that the grand jury proceedings were impaired because the prosecutor presented inadmissible evidence. "It is well settled that ‘[a] guilty plea generally results in a forfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings' " ( People v. Granger, 96 A.D.3d 1669, 1669, 947 N.Y.S.2d 310, lv. denied 19 N.Y.3d 1102, 955 N.Y.S.2d 557, 558, 979 N.E.2d 818, 819, quoting People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 ). Therefore, "[b]y pleading guilty, defendant forfeited his present contention that the grand jury proceedings were impaired, inasmuch as the alleged error did not render the accusatory instrument jurisdictionally defective" ( People v. Monacelli, 299 A.D.2d 916, 916, 750 N.Y.S.2d 690, lv. denied 99 N.Y.2d 617, 757 N.Y.S.2d 828, 787 N.E.2d 1174 ; see generally People v. Hansen, 95 N.Y.2d 227, 232, 715 N.Y.S.2d 369, 738 N.E.2d 773 ; People v. Newkirk, 133 A.D.3d 1364, 1365, 20 N.Y.S.3d 507, lv. denied 26 N.Y.3d 1148, 32 N.Y.S.3d 62, 51 N.E.3d 573 ). The remaining contentions in defendant's pro se supplemental brief are based on facts outside the record and thus must be raised by way of a motion pursuant to CPL 440.10 (see People v. Miller, 68 A.D.3d 1135, 1135, 892 N.Y.S.2d 152, lv. denied 14 N.Y.3d 803, 899 N.Y.S.2d 137, 925 N.E.2d 941 ; see also People v. Evans, 137 A.D.3d 1683, 1683–1684, 28 N.Y.S.3d 199, lv. denied 27 N.Y.3d 1131, 39 N.Y.S.3d 113, 61 N.E.3d 512 ).
Finally, contrary to defendant's contention in his main brief, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
SMITH, J.P., CENTRA, DeJOSEPH, NEMOYER, and SCUDDER, JJ., concur.