PEOPLE v. TAVAREZ (2020)

Judgment, Supreme Court, New York County (Anthony J. Ferrara, J.), rendered March 16, 2017, convicting defendant, upon his plea of guilty, of attempted rape in the first degree, and sentencing him to a term of eight years, unanimously affirmed.

Defendant claims that his guilty plea under an undisputedly valid count of the indictment was impacted or influenced by the presence of a more serious charge that defendant claims to have been jurisdictionally defective.  He further claims that when he was told that he was facing a life sentence if convicted after trial, this information was inaccurate because the only class A felony charge in the indictment was the allegedly defective count.  We conclude that these claims are not exempt from preservation requirements (see generally People v. Conceicao, 26 N.Y.3d 375, 381–382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ).

For purposes of this appeal, we assume, without deciding, that the count charging defendant with predatory sexual assault against a child was jurisdictionally defective, and find it unnecessary to address the parties' arguments on that issue.  A claim that an indictment or count thereof was jurisdictionally defective is not subject to preservation rules (see e. g. People v. Thacker, 173 A.D.3d 1360, 1361, 102 N.Y.S.3d 764 [3d Dept. 2019] lv denied 34 N.Y.3d 938, 109 N.Y.S.3d 730, 133 N.E.3d 434 [2019] ).  However, it does not follow that a claim that a defective count impacted a defendant's decision to plead guilty should be likewise exempt.  While a jurisdictional defect may be apparent on the face of the indictment, the defect's impact on a plea would warrant the type of inquiry that would ordinarily be occasioned by a plea withdrawal motion (see People v. Frederick, 45 N.Y.2d 520, 524–525, 410 N.Y.S.2d 555, 382 N.E.2d 1332 [1978];  see also People v. Peque, 22 N.Y.3d 168, 183, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013], cert denied 574 U.S. 840, 135 S.Ct. 90, 190 L.Ed.2d 75 [2014] ).

We decline to review defendant's unpreserved claims in the interest of justice.  As an alternative holding, we find no basis for reversal.  The limited record before us fails to establish that the presence of the allegedly defective count impacted defendant's choice to plead guilty under a valid count.  In particular, the record demonstrates that at the time of his plea, defendant was aware that the People had recognized a problem with the language of the predatory sexual assault count, and were taking steps to attempt to cure the defect.  Similarly, defendant was correctly advised of his potential sentencing exposure.

We perceive no basis for reducing the sentence.