Opinion
110497
07-02-2020
The PEOPLE of the State of New York, Respondent, v. Michael L. OLIVER, Appellant.
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant. Chad W. Brown, District Attorney, Johnstown (Katherine Ehrlich of counsel), for respondent.
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
Chad W. Brown, District Attorney, Johnstown (Katherine Ehrlich of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Clark, Pritzker and Reynolds Fitzgerald, JJ.
MEMORANDUM AND ORDER
Clark, J. Defendant waived indictment and was charged in a superior court information (hereinafter SCI) with the crime of sexual abuse in the first degree after he admitted to having inappropriate sexual contact with his girlfriend's minor daughter. He pleaded guilty to this crime in satisfaction of the SCI, as well as a related charge brought in another jurisdiction, and waived his right to appeal. Prior to sentencing, defendant expressed his desire to withdraw his guilty plea against the advice of counsel. County Court concluded that there was no basis for permitting defendant to withdraw his plea and sentenced defendant, in accordance with the terms of the plea agreement, to five years in prison, followed by 10 years of postrelease supervision. This Court, however, subsequently ruled that County Court should have assigned new counsel to represent defendant on his motion to withdraw his plea ( 158 A.D.3d 990, 990–991, 71 N.Y.S.3d 692 [2018] ). Consequently, the sentence was vacated and the matter was remitted to County Court for the assignment of new counsel and reconsideration of defendant's motion to withdraw his plea ( id. at 991, 71 N.Y.S.3d 692 ). On behalf of defendant, new counsel submitted a formal motion to withdraw the plea, which was denied by County Court following a hearing. County Court proceeded to resentence defendant, as originally agreed, to five years in prison, followed by 10 years of postrelease supervision. Defendant appeals.
Defendant contends that the waiver of indictment is invalid and the SCI is jurisdictionally defective for failure to set forth the date and approximate time of the offense as required by CPL 195.20. However, the failure to include such nonelemental factual information, particularly in cases involving child sexual assault, constitutes a nonjurisdictional defect, rather than a jurisdictional one (see People v. Lang, 34 N.Y.3d 545, 568–570, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; People v. Shindler, 179 A.D.3d 1306, 1307, 118 N.Y.S.3d 266 [2020] ; see also People v. Edwards, 181 A.D.3d 1054, 1055, 122 N.Y.S.3d 133 [2020] ; People v. Elric YY., 179 A.D.3d 1304, 1305, 117 N.Y.S.3d 735 [2020] ). Here, both the waiver of indictment and the SCI stated that the crime of sexual abuse in the first degree, a class D violent felony, occurred "on or about the month of July, 2015." Notwithstanding the omission of the date and approximate time of the offense, the waiver of indictment and the SCI, together with the underlying accusatory instruments prepared in connection with the incident, gave defendant reasonable notice of the felony sex crime with which he was being charged. In light of this, as well as the absence of any indication that defendant raised an objection before County Court to the sufficiency of the waiver of indictment or the SCI, or requested a bill of particulars, defendant's challenge to the waiver of indictment and the SCI was forfeited by his guilty plea (see People v. Edwards, 181 A.D.3d at 1055, 122 N.Y.S.3d 133 ; People v. Elric YY., 179 A.D.3d at 1305, 117 N.Y.S.3d 735 ; People v. Shindler, 179 A.D.3d at 1307, 118 N.Y.S.3d 266 ).
Defendant also argues that his guilty plea was not knowing, voluntary and intelligent because County Court, among other things, did not adequately explain all of the trial-related constitutional rights that he was waiving by pleading guilty or ascertain that he understood the consequences of the plea. Preliminarily, we note that defendant's challenge to the voluntariness of the plea is not precluded by his appeal waiver (see People v. Almonte, 179 A.D.3d 1222, 1224, 116 N.Y.S.3d 782 [2020], lv denied 35 N.Y.3d 940, 124 N.Y.S.3d 271, 147 N.E.3d 541 [2020] ; People v. Bond, 146 A.D.3d 1155, 1156, 44 N.Y.S.3d 776 [2017], lv denied 29 N.Y.3d 1076, 64 N.Y.S.3d 165, 86 N.E.3d 252 [2017] ) and was preserved by his unsuccessful postallocution motion to withdraw his plea (see People v. Abraham, 165 A.D.3d 1318, 1320, 85 N.Y.S.3d 244 [2018] ; People v. Massia, 131 A.D.3d 1280, 1281, 15 N.Y.S.3d 515 [2015], lv denied 26 N.Y.3d 1041, 22 N.Y.S.3d 170, 43 N.E.3d 380 [2015] ). During the plea proceedings, County Court advised defendant that he was giving up a number of important rights by pleading guilty, including the right "to take the case to trial," the "right to cross-examine people who testified against you," and "the right to testify yourself or call your own witnesses." The court further explained that he could not be convicted at trial unless the People proved to a jury beyond a reasonable doubt that he was guilty of the crime. The court, however, failed to mention the privilege against self-incrimination or ascertain whether defendant conferred with counsel regarding the trial-related rights that he was waiving and the constitutional consequences of entering a guilty plea (see People v. Demkovich, 168 A.D.3d 1221, 1222, 91 N.Y.S.3d 801 [2019] ; People v. Holmes, 162 A.D.3d 1117, 1118, 78 N.Y.S.3d 751 [2018] ; People v. Cotto, 156 A.D.3d 1063, 1064, 66 N.Y.S.3d 742 [2017] ; compare People v. Edwards, 181 A.D.3d at 1056–1057, 122 N.Y.S.3d 133 ). Absent an affirmative showing that defendant fully understood and voluntarily waived his trial-related constitutional rights, the plea was invalid and must be vacated (see People v. Tyrell, 22 N.Y.3d 359, 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ; People v. Demkovich, 168 A.D.3d at 1222, 91 N.Y.S.3d 801 ; People v. Holmes, 162 A.D.3d at 1118, 78 N.Y.S.3d 751 ). In view of our disposition, we need not address defendant's remaining claims.
Egan Jr., J.P., Lynch, Pritzker and Reynolds Fitzgerald, JJ., concur.
ORDERED that the judgment is reversed, on the law, and matter remitted to the County Court of Fulton County for further proceedings not inconsistent with this Court's decision.