PEOPLE v. HERNANDEZ (2009)

 Defendant appeals from a judgment convicting him upon his plea of guilty of criminal contempt in the first degree (Penal Law § 215.51[b][v] ) and burglary in the third degree (§ 140.20).   As the People correctly concede, defendant's waiver of the right to appeal was not knowing and voluntary inasmuch as Supreme Court failed to explain that the waiver of the right to appeal is separate and distinct from the other rights that are forfeited by the plea (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).   Although defendant's jurisdictional challenge to the superior court information (SCI) survives the plea and, indeed, would have survived a valid waiver of the right to appeal (see People v. Heinig, 21 A.D.3d 1297, 801 N.Y.S.2d 670, lv. denied 6 N.Y.3d 813, 812 N.Y.S.2d 453, 845 N.E.2d 1284), we nevertheless reject that challenge.   According to defendant, the SCI is jurisdictionally defective because he was not held for the action of a grand jury by the local criminal court as required by CPL 195.10(1)(a).   The record establishes that defendant was arraigned by the local criminal court and that the matter was adjourned for further proceedings.   There is no indication in the record that a preliminary hearing was held, but the record does establish that Supreme Court was satisfied with the waiver of the indictment and executed an order to that effect.   We thus “may presume that the matter was properly before that court” (People v. Chad S., 237 A.D.2d 986, 656 N.Y.S.2d 990, lv. denied 90 N.Y.2d 856, 661 N.Y.S.2d 183, 683 N.E.2d 1057;  see People v. Hurd, 12 A.D.3d 1198, 1199, 784 N.Y.S.2d 435, lv. denied 4 N.Y.3d 764, 792 N.Y.S.2d 8, 825 N.E.2d 140).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: