PEOPLE v. MORRIS (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Breslin, J.), rendered October 8, 2015 in Albany County, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a controlled substance in the third degree.

In satisfaction of a four-count indictment and in exchange for assurance that he would be sentenced to no more than seven years in prison and three years of postrelease supervision, defendant waived his right to appeal and pleaded guilty to one count of attempted criminal possession of a controlled substance in the third degree.  Supreme Court sentenced defendant, as a second felony offender, to the maximum prison term of seven years, to be followed by three years of postrelease supervision.  Defendant appeals.

We affirm.  Defendant initially contends that the indictment must be dismissed because it was not signed by the grand jury foreperson as required by CPL 200.50(8).  However, because defendant did not move to dismiss the indictment and waived his right to appeal as part of his plea, this issue “is unpreserved and is reviewable as of right only if the missing signature renders the indictment jurisdictionally defective” (People v. Brown, 17 A.D.3d 869, 870, 793 N.Y.S.2d 270 [2005] [internal quotation marks and citation omitted];  see People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978] ).  The record reveals that the face of the indictment is signed by the presenting Assistant District Attorney, and the accompanying backers for each count of the indictment are signed by both the Assistant District Attorney and the grand jury foreperson.  “Viewing these documents together as integral parts of the whole” (People v. Striplin, 48 A.D.3d 878, 879, 851 N.Y.S.2d 685 [2008], lv denied 10 N.Y.3d 871, 860 N.Y.S.2d 497, 890 N.E.2d 260 [2008] ), we are satisfied that the requirements of CPL 200.50(8) have been met (see People v. Broomfield, 128 A.D.3d 1271, 1272, 9 N.Y.S.3d 733 [2015], lv denied 26 N.Y.3d 1086, 23 N.Y.S.3d 643, 44 N.E.3d 941 [2015];  People v. Burch, 97 A.D.3d 987, 988, 948 N.Y.S.2d 742 [2012], lv denied 19 N.Y.3d 1101, 955 N.Y.S.2d 556, 979 N.E.2d 817 [2012];  People v. Brown, 17 A.D.3d at 870, 793 N.Y.S.2d 270).

Defendant also claims that his plea was not knowing, intelligent and voluntary because Supreme Court did not advise him that his driving privileges would be temporarily suspended as part of his sentence (see Vehicle and Traffic Law § 510[2][b][v] ).  Although this argument survives his appeal waiver, it is unpreserved for our review absent record evidence of an appropriate postallocution motion (see People v. Shaw, 157 A.D.3d 1138, 1140, 69 N.Y.S.3d 438 [2018];  People v. Sumter, 157 A.D.3d 1125, 1125, 70 N.Y.S.3d 253 [2018] ).  Were we to reach this issue, we would find it unavailing inasmuch as “the suspension of his driver's license was a collateral consequence of [his] guilty plea and the failure to disclose this consequence during the plea colloquy [would] not warrant vacatur of the plea” (People v. Williams, 150 A.D.3d 1549, 1551, 56 N.Y.S.3d 357 [2017];  see People v. Peque, 22 N.Y.3d 168, 185, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013] ).  Finally, defendant's claim that the sentence imposed is harsh and excessive is foreclosed by his unchallenged appeal waiver (see People v. Dorsey, 148 A.D.3d 1352, 1352, 48 N.Y.S.3d 628 [2017], lv denied 29 N.Y.3d 1031, 62 N.Y.S.3d 299, 84 N.E.3d 971 [2017];  People v. Smalls, 128 A.D.3d 1281, 1282, 8 N.Y.S.3d 614 [2015], lv denied 27 N.Y.3d 1006, 38 N.Y.S.3d 115, 59 N.E.3d 1227 [2016] ).

ORDERED that the judgment is affirmed.

McCarthy, J.P.

Devine, Mulvey, Aarons and Pritzker, JJ., concur.