Opinion
2012-11-21
The PEOPLE of the State of New York, Respondent, v. Colleen KAMBURELIS, Appellant.
Tracy Donovan–Laughlin, Cherry Valley, for appellant. Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), for respondent.
Tracy Donovan–Laughlin, Cherry Valley, for appellant. Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), for respondent.
Before: ROSE, J.P., LAHTINEN, SPAIN, KAVANAGH and McCARTHY, JJ.
KAVANAGH, J.
Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered July 21, 2011, convicting defendant upon her plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.
Defendant waived indictment and agreed to be prosecuted by a superior court information (hereinafter SCI) charging her with attempted criminal sale of a controlled substance in the third degree. She pleaded guilty to this charge and waived her right to appeal. She was thereafter sentenced, in accordance with the plea agreement, to five years of probation. Defendant appeals.
Defendant's sole contention is that the SCI is jurisdictionally defective because it does not contain sufficient factual allegations of the material elements of the crime in question. Preliminarily, we note that this claim is not precluded by defendant's waiver of her right to appeal or her guilty plea ( see People v. McDuffie, 89 A.D.3d 1154, 1155, 932 N.Y.S.2d 228 [2011],lv. denied19 N.Y.3d 964, 950 N.Y.S.2d 116, 973 N.E.2d 214 [2012];People v. Binns, 82 A.D.3d 1449, 1450, 918 N.Y.S.2d 753 [2011] ). Nevertheless, we find it to be without merit. A charging instrument that incorporates by reference the statutory provisions applicable to the crime charged has been held to allege the material elements of the crime sufficiently to survive a jurisdictional challenge ( see People v. D'Angelo, 98 N.Y.2d 733, 734–735, 750 N.Y.S.2d 811, 780 N.E.2d 496 [2002];People v. Mitchell, 94 A.D.3d 1252, 1252–1253, 942 N.Y.S.2d 657 [2012],lv. denied19 N.Y.3d 964, 950 N.Y.S.2d 116, 973 N.E.2d 214 [2012];People v. Binns, 82 A.D.3d at 1450, 918 N.Y.S.2d 753;People v. Downs, 26 A.D.3d 525, 526, 807 N.Y.S.2d 743 [2006],lv. denied6 N.Y.3d 847, 816 N.Y.S.2d 753, 849 N.E.2d 976 [2006] ). Here, not only does the SCI specifically refer to Penal Law §§ 110.00 and 220.39(1), but it also contains factual references to the date and location of the incident as well as the specific drug involved. Accordingly, there is no jurisdictional defect and defendant is precluded by her guilty plea from otherwise challenging the factual sufficiency of the SCI ( see People v. Morales, 66 A.D.3d 1083, 1084, 885 N.Y.S.2d 653 [2009] ).
ORDERED that the judgment is affirmed.