Opinion
11-16-2017
The PEOPLE of the State of New York, Respondent, v. Michael TAMMARO, Defendant–Appellant.
Rosemary Herbert, Office of the Appellate Defender, New York (Sharmeen Mazumder of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser of counsel), for respondent.
Rosemary Herbert, Office of the Appellate Defender, New York (Sharmeen Mazumder of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser of counsel), for respondent.
RICHTER, J.P., WEBBER, KERN, MOULTON, JJ.
Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered June 26, 2013, convicting defendant, upon his plea of guilty, of grand larceny in the second degree, and sentencing him to a term of three to nine years, unanimously affirmed.
Defendant was charged in an indictment with multiple counts of larceny arising out of a fraudulent scheme by which he falsely offered to lease his apartment to numerous individuals, in exchange for their giving him payments for rent and security deposits. Defendant pleaded guilty to the top count of the indictment, grand larceny in the second degree, admitting that over the course of several months, he stole property from a number of people, and the value of that property exceeded $50,000. Defendant also admitted that he performed the scheme on at least 40 people, and that the total amount he had stolen was over $192,000.
On appeal, defendant maintains that the People improperly aggregated varying amounts taken from different victims at different times in order to meet the $50,000 statutory threshold required for second-degree grand larceny. Defendant contends that because the indictment was "improperly constituted," his plea should be vacated and the second-degree grand larceny count dismissed. Because defendant did not move to dismiss the indictment on this basis, he has failed to preserve the issue for our review (see People v. Brown, 81 N.Y.2d 798, 799, 595 N.Y.S.2d 370, 611 N.E.2d 271 [1993] ; People v. Pepper, 59 N.Y.2d 353, 360, 465 N.Y.S.2d 850, 452 N.E.2d 1178 [1983] ; People Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978] ), and we decline to reach it in the interest of justice. Defendant's generalized reference in his omnibus motion to a "defective" indictment was insufficient to preserve the specific appellate claim presented (see People v. Delvalle, 114 A.D.3d 612, 612–613, 980 N.Y.S.2d 466 [1st Dept.2014], lv. denied 23 N.Y.3d 962, 988 N.Y.S.2d 569, 11 N.E.3d 719 [2014] ; People v. Green, 105 A.D.3d 611, 612, 963 N.Y.S.2d 257 [1st Dept.2013], lv. denied 21 N.Y.3d 1015, 971 N.Y.S.2d 498, 994 N.E.2d 394 [2013] ).
A person is guilty of grand larceny in the second degree when he steals property and when the value of the property exceeds $50,000 (Penal Law § 155.40[1] ).
We note that prior to filing the omnibus motion, defendant was aware that the second-degree grand larceny count was premised on the aggregated value of property taken from multiple victims over the course of several months.
As an alternative holding, we conclude that defendant's claim is forfeited by his guilty plea. "Generally, a guilty plea marks the end of a criminal matter as opposed to providing a gateway to further litigation" ( People v. Guerrero, 28 N.Y.3d 110, 115, 42 N.Y.S.3d 80, 65 N.E.3d 51 [2016] ). Thus, a plea of guilty will generally result in the forfeiture of a defendant's right to appeal nonjurisdictional defects in a criminal proceeding ( People v. Konieczny, 2 N.Y.3d 569, 572, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004] ). Although matters involving jurisdictional defects will survive a guilty plea (see People v. Guerrero, 28 N.Y.3d at 115, 42 N.Y.S.3d 80, 65 N.E.3d 51 ), the alleged insufficiency of an indictment's factual allegations is not a jurisdictional defect ( People v. Iannone, 45 N.Y.2d 589, 600–601, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978] ).
Here, defendant's challenge to the indictment is essentially a claim of factual insufficiency, and thus is waived by his guilty plea (see id.; People v. Dickenson, 262 A.D.2d 215, 216, 691 N.Y.S.2d 769 [1st Dept.1999] ; People v. Kwok, 257 A.D.2d 402, 402, 682 N.Y.S.2d 577 [1st Dept.1999], lv. denied 93 N.Y.2d 875, 689 N.Y.S.2d 437, 711 N.E.2d 651 [1999] ). To the extent defendant claims that, due to alleged improper aggregation, the evidence before the grand jury was legally insufficient to establish second-degree grand larceny, that claim too is foreclosed by his guilty plea (see People v. Guerrero, 28 N.Y.3d at 116, 42 N.Y.S.3d 80, 65 N.E.3d 51 [after a guilty plea has been entered, a defendant cannot challenge the sufficiency of the evidence before the grand jury] ). There is no merit to defendant's claim that improper aggregation resulted in a jurisdictional defect in the indictment. "The distinction between jurisdictional and nonjurisdictional defects is between defects implicating the integrity of the process ... and less fundamental flaws, such as evidentiary or technical matters" ( People v. Dreyden, 15 N.Y.3d 100, 103, 905 N.Y.S.2d 542, 931 N.E.2d 526 [2010] [internal quotation marks omitted] ). "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] ).
Contrary to defendant's contention, the indictment pleads a cognizable and existing crime. The count alleging second-degree grand larceny tracks the language of the statute ( Penal Law § 155.40[1] ), incorporates that statute by express reference, and alleges every element of the crime (see People v. D'Angelo, 98 N.Y.2d 733, 735, 750 N.Y.S.2d 811, 780 N.E.2d 496 [2002] ; People v. Iannone, 45 N.Y.2d at 592 n. 1, 412 N.Y.S.2d 110, 384 N.E.2d 656 ). The cases relied upon by defendant are distinguishable. In both People v. Barksdale, 139 A.D.3d 1080, 30 N.Y.S.3d 849 (2d Dept.2016) and People v. Lopez, 45 A.D.3d 493, 846 N.Y.S.2d 164 (1st Dept.2007), the defendants pleaded guilty to nonexistent, legally impossible crimes (see Barksdale, 139 A.D.3d at 1080, 30 N.Y.S.3d 849 [attempted second-degree assault under Penal Law § 120.05(3) ]; Lopez, 45 A.D.3d at 494, 846 N.Y.S.2d 164 [attempted depraved indifference murder]; see also People v. Greeman, 49 A.D.3d 463, 463–464, 853 N.Y.S.2d 557 [1st Dept.2008], lv. denied 10 N.Y.3d 934, 862 N.Y.S.2d 341, 892 N.E.2d 407 [2008] [finding that the defendant's claim that a bent MetroCard did not satisfy the forgery statute was foreclosed by guilty plea, and rejecting claim that the defendant pleaded guilty to a nonexisting crime] ). Because of defendant's forfeiture, we need not reach the merits of defendant's claim that these thefts could not be aggregated (see generally People v. Buckley, 75 N.Y.2d 843, 846, 552 N.Y.S.2d 912, 552 N.E.2d 160 [1990] ; People v. Cox, 286 N.Y. 137, 145, 36 N.E.2d 84 [1941] ).
We perceive no basis to reduce defendant's sentence.