THE PEOPLE OF THE STATE OF NEW YORK v. JESUS ORTIZ (2026)

MEMORANDUM AND ORDER

Calendar Date:  May 28, 2026

Appeal from a judgment of the County Court of Montgomery County (Chad Brown, J.), rendered April 10, 2024, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

Defendant was charged in a four-count indictment with offenses relating to his possession and sale of cocaine on May 19, 2022 and June 22, 2022.  Less than a month after defendant was arraigned, and over his objection, County Court granted the People's application to amend the indictment to correct what “appear[ed] to be a typographical error” and reflect that the charged offenses had occurred on those dates in 2023 (see CPL 200.70[1] ).  Defendant subsequently agreed to plead guilty to one count of criminal possession of a controlled substance in the third degree relating to the May 2023 incident in satisfaction of the indictment and other pending charges, as well as to waive his right to appeal.  During the plea allocution, however, County Court misspoke and asked if defendant had committed the offense on May 19, 2022;  defendant agreed that he had before pleading guilty.  Defendant thereafter indicated that he wanted to move to withdraw his guilty plea, and County Court assigned new counsel who did so upon his behalf.  County Court denied the motion without a hearing and sentenced defendant, as a second felony offender, to the agreed-upon term of six years in prison, to be followed by three years of postrelease supervision.  Defendant appeals.

We affirm.  Defendant now suggests that he should have been permitted to withdraw his guilty plea because he admitted to committing criminal possession of a controlled substance in the third degree on May 19, 2022, a date when he could not have committed the offense due to his incarceration on other charges, and not the date charged in the amended indictment.  Although defendant styles this argument as a jurisdictional one, it is, in reality, a challenge to the factual sufficiency of the plea allocution because the date of offense is not an element of the crime of criminal possession of controlled substance in the third degree (see Penal Law § 220.16[1];  People v. DePace, 235 AD3d 1179, 1180 [3d Dept 2025] ).  The argument is accordingly precluded by an appeal waiver that, insofar as defendant challenges it, we find to be valid (see People v. Harrigan, 239 AD3d 1153, 1155 [3d Dept 2025];  People v. Atkins, 222 AD3d 1043, 1043 [3d Dept 2023], lv denied 41 NY3d 982 [2024];  see also People v. Elmore, 239 AD3d 1204, 1206 [3d Dept 2025] ).  The argument is also unpreserved because defendant did not raise it in his motion to withdraw the guilty plea (see People v. Gouge, 239 AD3d 1143, 1144–1145 [3d Dept 2025];  People v. Burks, 187 AD3d 1405, 1407 [3d Dept 2020], lv denied 36 NY3d 1095 [2021] ), and we reject defendant's contention that his “postplea statements ․ challenging the factual basis of his plea” implicate the narrow exception to the preservation rule (People v. Rios, _ NY3d _, _, 2026 N.Y. Slip Op 00963, *3 [2026];  see People v. Host, 248 AD3d 1505, 1505–1506 [3d Dept 2026] ).  Defendant's remaining contentions, to the extent that they are not addressed by the foregoing, have been examined and found to be without merit.

Fisher, Mackey, Corcoran and Ryba, JJ., concur.

ORDERED that the judgment is affirmed.

Garry, P.J.