PEOPLE v. KING (2020)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered June 16, 2017, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.

Defendant was charged in a 10–count indictment with numerous crimes stemming from incidents that occurred in June 2016 and July 2016.  Following arraignment, defendant filed an omnibus motion seeking, among other things, to dismiss those counts of the indictment charging him with criminal possession of a weapon in the second degree contending, insofar as is relevant here, that the weapon in question “was not functioning or able to be fired.”  Upon reviewing the grand jury minutes, County Court denied defendant's motion, finding “that defendant did possess the magazine to the gun, therefore making it operable.”

In full satisfaction of the indictment, defendant ultimately agreed to plead guilty to one count of criminal possession of a weapon in the second degree with the understanding that he would be sentenced to a prison term of four years followed by a period of postrelease supervision – to be determined by County Court – within the range of 21/212 to 5 years.  The plea agreement also required defendant to waive his right to appeal.  Defendant pleaded guilty in conformity with the plea agreement, and the matter was adjourned for sentencing.

Based upon statements attributed to defendant in the presentence investigation report, County Court conducted a further inquiry prior to sentencing, during the course of which defendant again affirmed – under oath – that he possessed a loaded firearm at a location other than his home or place of business on the day in question (see Penal Law § 265.03[3] ).  County Court thereafter sentenced defendant to a prison term of four years followed by four years of postrelease supervision.  This appeal ensued.

Defendant contends that County Court erred in denying his motion to dismiss because the People failed to establish that the weapon in question was operable.  This argument is directed to the sufficiency of the evidence before the grand jury, and “defendant, by his guilty plea, has waived his right to challenge the legal sufficiency of the evidence supporting the indictment” (People v. Melendez, 48 A.D.3d 960, 960, 852 N.Y.S.2d 440 [2008], lv denied 10 N.Y.3d 962, 863 N.Y.S.2d 146, 893 N.E.2d 452 [2008];  see People v. Greene, 171 A.D.3d 1407, 1408, 99 N.Y.S.3d 120 [2019];  People v. Busreth, 167 A.D.3d 1089, 1090, 87 N.Y.S.3d 406 [2018], lv denied 33 N.Y.3d 946, 100 N.Y.S.3d 188, 123 N.E.3d 847 [2019];  People v. Wilburn, 158 A.D.3d 894, 894–895, 71 N.Y.S.3d 181 [2018], lv denied 31 N.Y.3d 1123, 81 N.Y.S.3d 383, 106 N.E.3d 766 [2018];  see also People v. Shillabeer, 154 A.D.3d 1017, 1018, 60 N.Y.S.3d 862 [2017] ).  Any assertion that the plea allocution itself was factually deficient on this point is unpreserved for our review absent evidence of an appropriate postallocution motion (see People v. Cook, 150 A.D.3d 1543, 1544, 52 N.Y.S.3d 680 [2017] ).  Finally, defendant's unchallenged appeal waiver precludes his claim that the sentence imposed is harsh and excessive (see People v. Allen, 181 A.D.3d 1093, 1094, 118 N.Y.S.3d 454 [2020];  People v. Brickhouse, 181 A.D.3d 1057, 1057, 117 N.Y.S.3d 892 [2020] ).

ORDERED that the judgment is affirmed.

Egan Jr., J.P.

Lynch, Devine, Pritzker and Reynolds Fitzgerald, JJ., concur.