Opinion
2012-12-13
The PEOPLE of the State of New York, Respondent, v. James W. SLINGERLAND, Appellant.
Bruce E. Knoll, Albany, for appellant. James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.
Bruce E. Knoll, Albany, for appellant. James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.
Before: MERCURE, J.P., SPAIN, STEIN, McCARTHY and GARRY, JJ.
SPAIN, J.
Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered October 29, 2010, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.
Defendant was charged in an indictment with six counts of criminal sale or possession of a controlled substance, narcotic drugs, occurring on May 22, 2009 in the Town of Saratoga, Saratoga County. Defendant entered a guilty plea to one count of attempted criminal sale of a controlled substance in the third degree and, as agreed, waived his right to appeal during the plea colloquy and in a written, signed instrument. He was sentenced, as an admitted second felony offender, to a two-year prison term to be followed by a periodof 1 1/2 years of postrelease supervision. Defendant now appeals.
We affirm. Our review of the record confirms that defendant's plea and appeal waiver were knowingly, voluntarily and intelligently entered ( see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992];People v. Moissett, 76 N.Y.2d 909, 910–911, 563 N.Y.S.2d 43, 564 N.E.2d 653 [1990] ). Defendant argues that the indictment was facially defective in that it failed to specify the location, i.e., exact address, and time at which the offenses were committed. As defendant did not raise these specific claims in his motion to dismiss the indictment ( seeCPL 210.20, 210.25), they are unpreserved for our review and are also foreclosed by his guilty plea and appeal waiver, unless they constitute a nonwaivable jurisdictional defect, which may be raised for the first time on appeal ( see People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978];People v. Stauber, 307 A.D.2d 544, 545, 763 N.Y.S.2d 854 [2003],lv. denied100 N.Y.2d 599, 766 N.Y.S.2d 175, 798 N.E.2d 359 [2003] ).
“An indictment is rendered jurisdictionally defective only if it does not charge the defendant with the commission of a particular crime, by, for example, failing to allege every material element of the crime charged, or alleging acts that do not equal a crime at all” ( People v. Hansen, 95 N.Y.2d 227, 231, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000];see People v. Iannone, 45 N.Y.2d at 600, 412 N.Y.S.2d 110, 384 N.E.2d 656). The precise address and time were not elements of any of the crimes charged and, thus, the indictment “may allege the time in approximate terms” ( People v. Watt, 81 N.Y.2d 772, 774, 593 N.Y.S.2d 782, 609 N.E.2d 135 [1993] ).CPL 200.50(6) “does not require the exact date and time” ( People v. Morris, 61 N.Y.2d 290, 294, 473 N.Y.S.2d 769, 461 N.E.2d 1256 [1984] ) but, rather, provides—with respect to the allegation of when a crime occurred—that it must have been committed “on, or on or about, a designated date, or during a designated period of time” (CPL 200.50[6] [emphasis added] ). Here, the date was given and the lack of a precise address or time on that date is, at most, a waivable facial deficiency and not a fatal jurisdictional defect ( see People v. Morris, 61 N.Y.2d at 295, 473 N.Y.S.2d 769, 461 N.E.2d 1256;People v. Cox, 275 A.D.2d 924, 925, 713 N.Y.S.2d 708 [2000],lv. denied95 N.Y.2d 962, 722 N.Y.S.2d 479, 745 N.E.2d 399 [2000];People v. Nicholson, 98 A.D.2d 876, 876, 470 N.Y.S.2d 854 [1983];People v. Kepple, 98 A.D.2d 783, 783, 469 N.Y.S.2d 801 [1983];People ex rel. White v. McMann, 8 A.D.2d 921, 187 N.Y.S.2d 199 [1959],lv. denied7 N.Y.2d 705, 193 N.Y.S.2d 1026, 162 N.E.2d 753 [1959];cf. People v. Sanchez, 84 N.Y.2d 440, 447–448, 618 N.Y.S.2d 887, 643 N.E.2d 509 [1994] ). Indeed, had defendant raised these objections before County Court, the People could have moved to amend the indictment with respect to the time and place of the crimes, provided it did not change the theory of their prosecution ( seeCPL 200.70[1] ).
Such a facial deficiency is curable by a bill of particulars ( see People v. Iannone, 45 N.Y.2d at 597, 412 N.Y.S.2d 110, 384 N.E.2d 656), which defendant requested in this case, and any unfulfilled obligation on the part of the People to provide the bill of particulars was waived by the guilty plea.
Likewise unpreserved is defendant's claim that the six counts in the indictment are multiplicitous ( seeCPL 210.20[1][a]; People v. Thompson, 34 A.D.3d 931, 932, 823 N.Y.S.2d 602 [2006],lv. denied7 N.Y.3d 929, 827 N.Y.S.2d 698, 860 N.E.2d 1000 [2006] ). This is a nonjurisdictional challenge that was forfeited by his guilty plea and encompassed by his appeal waiver ( see People v. Nichols, 32 A.D.3d 1316, 1317, 821 N.Y.S.2d 534 [2006],lv. denied8 N.Y.3d 848, 830 N.Y.S.2d 707, 862 N.E.2d 799 [2007];People v. Nelson, 266 A.D.2d 730, 731, 698 N.Y.S.2d 797 [1999],lv. denied94 N.Y.2d 865, 704 N.Y.S.2d 541, 725 N.E.2d 1103 [1999] ).
Finally, defendant argues that trial counsel provided ineffective assistance due to his failure to file a motion to dismiss the indictment on statutory speedy trial grounds ( seeCPL 30.30, 210.20 [1][g] ). As there is no evidence in the record that defendant made a motion to withdraw his plea or to vacate the judgment on this basis, the issue is unpreserved ( see People v. Clifford, 295 A.D.2d 697, 698, 743 N.Y.S.2d 319 [2002],lv. denied98 N.Y.2d 709, 749 N.Y.S.2d 6, 778 N.E.2d 557 [2002] ); further, given the lack of any motion on this issue before County Court, the record on direct appeal is inadequate to assess its merits, which could only be addressed in a CPL article 440 motion ( see People v. Obert, 1 A.D.3d 631, 632, 766 N.Y.S.2d 264 [2003],lv. denied2 N.Y.3d 764, 778 N.Y.S.2d 782, 811 N.E.2d 44 [2004] ).
More significantly, however, any statutory speedy trial claims were waived by defendant's guilty plea ( see People v. Friscia, 51 N.Y.2d 845, 847, 433 N.Y.S.2d 754, 413 N.E.2d 1168 [1980];People v. Brothers, 50 N.Y.2d 413, 418, 429 N.Y.S.2d 558, 407 N.E.2d 405 [1980] ), and his valid appeal waiver precludes the related claims of ineffective assistance because he does not allege that “the claimed ineffectiveness induced an otherwise knowing and voluntary guilty plea” ( People v. McGuffie, 294 A.D.2d 617, 618, 740 N.Y.S.2d 887 [2002],lv. denied98 N.Y.2d 699, 747 N.Y.S.2d 418, 776 N.E.2d 7 [2002];see People v. Lopez, 8 A.D.3d 819, 820, 778 N.Y.S.2d 572 [2004],lv. denied3 N.Y.3d 708, 785 N.Y.S.2d 36, 818 N.E.2d 678 [2004];People v. Sayles, 292 A.D.2d 641, 643, 739 N.Y.S.2d 475 [2002],lv. denied98 N.Y.2d 681, 746 N.Y.S.2d 470, 774 N.E.2d 235 [2002] ). That is, the alleged ineffectiveness did not impact the voluntariness of defendant's plea or appeal waiver ( see People v. Parilla, 8 N.Y.3d 654, 660, 838 N.Y.S.2d 824, 870 N.E.2d 142 [2007] ) and was therefore forfeited by his appeal waiver ( see People v. Garland, 69 A.D.3d 1122, 1123, 891 N.Y.S.2d 921 [2010],lv. denied14 N.Y.3d 887, 903 N.Y.S.2d 776, 929 N.E.2d 1011 [2010] ). While defendant seeks to avoid the consequences of his guilty plea by raising the speedy trial claim in the context of an ineffective assistance rubric, “were we to consider defendant's [speedy trial] claim on the merits, we would be reviewing the very argument that defendant waived when he pleaded guilty and waived his right to appeal” ( People v. Parilla, 8 N.Y.3d at 659–660, 838 N.Y.S.2d 824, 870 N.E.2d 142). Thus, we find that this claim “relating to the deprivation of rights that took place before the plea was entered” ( People v. Hansen, 95 N.Y.2d at 230, 715 N.Y.S.2d 369, 738 N.E.2d 773) was forfeited by defendant's valid guilty plea and appeal waiver. Defendant's remaining claims have been reviewed and determined to be without merit.
ORDERED that the judgment is affirmed.
MERCURE, J.P., STEIN, McCARTHY and GARRY, JJ., concur.