PEOPLE v. COX (2023)

MEMORANDUM AND ORDER

Appeals (1) from a judgment of the County Court of Ulster County (Donald A. Williams Jr., J.), rendered March 20, 2013, convicting defendant upon his plea of guilty of the crimes of strangulation in the second degree and attempted rape in the third degree, and (2) from an order of said court (Bryan E. Rounds, J.), entered June 28, 2022, which denied defendant's motion for a reconstruction hearing.

In 2013, in satisfaction of a seven-count indictment, defendant pleaded guilty to strangulation in the second degree and attempted rape in the third degree.  County Court (Williams Jr., J.) subsequently sentenced defendant, as a persistent violent felony offender, to a term of imprisonment of 12 years to life for his conviction of strangulation in the second degree and to a period of one year in jail for his conviction of attempted rape in the third degree.

In March 2022, defendant filed a motion in County Court (Rounds, J.) requesting a reconstruction hearing, contending that the transcript of the plea proceedings conducted in January 2013 was unavailable despite efforts undertaken to locate said minutes and that prosecution of his direct appeal had been delayed due to the absence of such transcript.¹  In a June 2022 order, County Court denied the motion for a reconstruction hearing, finding that defendant failed to advance any basis for why the transcript of the plea proceedings was necessary to pursue his claims upon direct appeal of the conviction.  Defendant appeals from both the 2013 judgment of conviction as well as from the denial of his motion for a reconstruction hearing, and these appeals were consolidated by this Court (2023 N.Y. Slip Op. 61109[U] [3d Dept. 2023]).

Initially, defendant argues in his pro se supplemental brief that the first count of the indictment charging him with attempted rape in the first degree is jurisdictionally defective.  This claim “may not be waived by a guilty plea and can be raised for the first time on appeal” and survives any appeal waiver (People v. Guerrero, 28 N.Y.3d 110, 116, 42 N.Y.S.3d 80, 65 N.E.3d 51 [2016];  see People v. Dubois, 150 A.D.3d 1562, 1564 n, 55 N.Y.S.3d 513 [3d Dept. 2017]).  However, a particular count in “an indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime” (People v. Park, 163 A.D.3d 1060, 1064, 81 N.Y.S.3d 321 [3d Dept. 2018] [internal quotation marks and citation omitted];  see People v. Thiam, 34 N.Y.3d 1040, 1043, 115 N.Y.S.3d 745, 139 N.E.3d 366 [2019, DiFiore, Ch. J., concurring];  People v. Solomon, 203 A.D.3d 1468, 1469, 166 N.Y.S.3d 282 [3d Dept. 2022], affd 39 N.Y.3d 1114, 186 N.Y.S.3d 849, 208 N.E.3d 78 [2023]).  Where, as here, “an indictment count incorporates by reference the statutory provision applicable to the crime intended to be charged, ․ this is sufficient to apprise a defendant of the charge and, therefore, renders the count jurisdictionally valid” (People v. Park, 163 A.D.3d at 1064, 81 N.Y.S.3d 321 [internal quotation marks, brackets and citations omitted]).  As the indictment satisfied this standard, count one of the indictment was not jurisdictionally defective (see People v. Wheeler, 216 A.D.3d 1314, 1316, 190 N.Y.S.3d 169 [3d Dept. 2023];  People v. Mathis, 185 A.D.3d 1094, 1096, 126 N.Y.S.3d 795 [3d Dept. 2020]).²

Defendant also challenges the voluntariness of his guilty plea, which he claims was defective in several respects.  However, the transcript of the January 16, 2013 plea proceeding is unavailable, and we are therefore unable to determine whether defendant's plea was knowing and voluntary.  Without the plea minutes, we are also unable to conclusively determine whether defendant preserved his claim with an appropriate postallocution motion ³ or “whether his claim falls within the narrow exception to the preservation doctrine” (People v. Manon, 123 A.D.3d 467, 467, 998 N.Y.S.2d 48 [1st Dept. 2014];  compare People v. Hofler, 2 A.D.3d 176, 176, 767 N.Y.S.2d 774 [1st Dept. 2003] [opining that, where the sentencing minutes reveal that the defendant did not move to withdraw his plea, “his failure to make such an application would seriously undermine his ability to challenge his plea on appeal”], affd 4 N.Y.3d 41, 790 N.Y.S.2d 421, 823 N.E.2d 827 [2004]).  We therefore hold the case in abeyance, reserve decision, and remit the matter to County Court for a reconstruction hearing with respect to the plea proceedings (see People v. Henderson, 140 A.D.3d 1761, 1761, 32 N.Y.S.3d 429 [4th Dept. 2016];  People v. Manon, 123 A.D.3d at 468, 998 N.Y.S.2d 48;  People v. Martino, 61 A.D.2d 903, 903, 402 N.Y.S.2d 786 [1st Dept. 1978];  cf.  People v. Childs, 232 A.D.2d 308, 308–309, 648 N.Y.S.2d 918 [1st Dept. 1996];  People v. Allen, 224 A.D.2d 1027, 1027, 638 N.Y.S.2d 266 [4th Dept. 1996];  People v. Rowles, 162 A.D.2d 774, 774–775, 557 N.Y.S.2d 686 [3d Dept. 1990]).  Contrary to his claim, defendant is not entitled to summary reversal as he has not demonstrated that reconstruction is impossible (see People v. Parris, 4 N.Y.3d 41, 47, 790 N.Y.S.2d 421, 823 N.E.2d 827 [2004];  People v. Meyers, 191 A.D.3d 1406, 1407, 138 N.Y.S.3d 421 [4th Dept. 2021];  People v. Grimmett, 127 A.D.2d 547, 547, 512 N.Y.S.2d 371 [1st Dept. 1987];  compare People v. Armstrong, 49 A.D.3d 960, 961, 853 N.Y.S.2d 219 [3d Dept. 2008]).  In light of our decision, defendant's appeal from the denial of his motion seeking a reconstruction hearing is academic.

ORDERED that the decision on the appeal from the judgment is withheld, and matter remitted to the County Court of Ulster County for further proceedings not inconsistent with this Court's decision.

ORDERED that the appeal from the order is dismissed, as academic.

FOOTNOTES

1.   In their response, the People consented to a reconstruction hearing should the court reporter who took the minutes of the plea proceeding not be located.

2.   “To the extent that defendant challenges the factual sufficiency of the indictment, this constitutes a nonjurisdictional defect and any such challenges are waived by defendant's guilty plea” (People v. Williams, 155 A.D.3d 1253, 1254–1255, 64 N.Y.S.3d 742 [3d Dept. 2017] [citations omitted], lv denied 31 N.Y.3d 1089, 79 N.Y.S.3d 111, 103 N.E.3d 1258 [2018]).

3.   Defendant does not allege that he made an appropriate postallocution motion to preserve his claim that his guilty plea was involuntary or otherwise defective.

Fisher, J.

Clark, J.P., Aarons, Pritzker and Ceresia, JJ., concur.