PEOPLE v. NUNEZ (1999)

Appeal by the People from an order of the Supreme Court, Kings County (Lewis, J.), dated August 31, 1998, which granted the defendant's motion pursuant to CPL 440.10 to vacate a judgment of the same court (Curci, J.), rendered April 13, 1994, convicting him of criminal possession of a controlled substance in the seventh degree, upon his plea of guilty, and imposing sentence.

ORDERED that the order is reversed, on the law, the motion is denied, and the judgment is reinstated.

The Supreme Court erroneously granted the defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of criminal possession of a controlled substance in the seventh degree.   The purported deficiencies in the indictment and plea which were relied upon by the Supreme Court appear on the record underlying the judgment.   Thus, the motion should have been summarily denied (see, CPL 440.10[2][c];  see also, People v. Cooks, 67 N.Y.2d 100, 500 N.Y.S.2d 503, 491 N.E.2d 676).   In any event, the Supreme Court erred in holding that the indictment was jurisdictionally defective and that the defendant's plea was involuntary (see generally, People v. Ford, 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265;  People v. Calbud, Inc., 49 N.Y.2d 389, 426 N.Y.S.2d 238, 402 N.E.2d 1140;  People v. Cifuentes, 259 A.D.2d 558, 686 N.Y.S.2d 437).

MEMORANDUM BY THE COURT.