Opinion
570771/17
11-20-2019
The PEOPLE of the State of New York, Respondent, v. Mark MASOLA, Defendant-Appellant.
Per Curiam.
Judgment of conviction (Lyle E. Frank, J. at plea and sentencing; David Frey, J. at resentencing), rendered November 20, 2017, affirmed.
The misdemeanor complaint was jurisdictionally valid because it described facts of an evidentiary nature establishing reasonable cause to believe that defendant committed the offenses of petit larceny (see Penal Law § 155.25 ) and criminal possession of stolen property in the fifth degree (see Penal Law § 165.40 ). The factual allegations, including defendant's admission that he removed complainant's bicycle from the eighth floor stairwell of 495 Broadway, without permission, and placed it inside his apartment, were facially sufficient to support the charged offenses (see People v. Livingston , 150 A.D.3d 448 [2017], lv denied 29 N.Y.3d 1093 [2017] ). No additional evidentiary detail was required for the People's pleading to provide "adequate notice to enable defendant to prepare a defense and invoke his protection against double jeopardy" ( People v. Kasse , 22 N.Y.3d 1142, 1143 [2014] ).
Defendant's contention that his waiver of eligibility for sealing constituted an impermissible condition of his plea agreement is unpreserved, since he failed to move to withdraw the plea, despite ample opportunity to do so. We decline to review this unpreserved claim in the interest of justice. As an alternative holding, we find that the waiver of eligibility for sealing did not violate CPL 160.59, since the disorderly conduct offense to which defendant pleaded guilty was not an "eligible offense" under the statute, and the waiver not otherwise affect the validity of the plea (see People v. Duran , 60 Misc. 3d. 141[A], 2018 N.Y. Slip Op. 51302[U] [App Term, 1st Dept. 2018], lv denied 32 N.Y.3d 1171 [2019] ).