PEOPLE v. PICKARD (2026)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Madison County (Michael St. Leger, J.), rendered December 20, 2023, convicting defendant upon his plea of guilty of the crime of burglary in the first degree.

Defendant was charged in a nine-count indictment with various offenses, with the top count being burglary in the first degree.  Defendant's omnibus motion sought, among other things, to reduce the first-degree burglary charge to burglary in the second degree, alleging that the evidence before the grand jury did not legally establish that the victim suffered a physical injury.  County Court denied the motion, finding that the grand jury evidence was legally sufficient.  Defendant thereafter pleaded guilty to burglary in the first degree and agreed to waive his right to appeal.  At sentencing, the court denied defendant's pro se motion to withdraw his plea and sentenced him in accordance with the terms of the plea agreement to a prison term of nine years, to be followed by five years of postrelease supervision.  Defendant appeals.

Defendant contends that the indictment was jurisdictionally defective because the evidence presented to the grand jury was insufficient to establish that the victim sustained a physical injury to support the requisite elements of burglary in the first degree.  Such challenge is “fundamentally inconsistent with the plea of guilty ․ because ․ the claim essentially relates to the quantum of proof required to satisfy the factual elements of the crime[ ] considered by the [g]rand [j]ury” (People v. Hansen, 95 N.Y.2d 227, 232, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ).  Defendant's guilty plea forecloses his assertion that the evidence presented to the grand jury was not legally sufficient (see People v. Guerrero, 28 N.Y.3d 110, 116, 42 N.Y.S.3d 80, 65 N.E.3d 51 [2016];  People v. Hansen, 95 N.Y.2d at 233, 715 N.Y.S.2d 369, 738 N.E.2d 773;  People v. Kelly, 221 A.D.3d 1265, 1266, 200 N.Y.S.3d 517 [3d Dept 2023];  People v. Wilburn, 158 A.D.3d 894, 895, 71 N.Y.S.3d 181 [3d Dept 2018], lv denied 31 N.Y.3d 1123, 81 N.Y.S.3d 383, 106 N.E.3d 766 [2018] ).

Defendant also contends that his appeal waiver is invalid.  We disagree.  The record reflects that County Court informed defendant that the waiver of his right to appeal was separate and distinct from the rights forfeited by the guilty plea and advised defendant that, despite the waiver of appeal, some appellate rights nevertheless survived, which defendant assured the court he understood.  In addition, defendant executed a written appeal waiver after reviewing it with counsel.  Upon our review of the record, we are satisfied that the totality of the circumstances reflects that defendant knowingly, voluntarily and intelligently waived his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 546, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019];  People v. Lesson, 241 A.D.3d 1051, 1055, 240 N.Y.S.3d 841 [3d Dept 2025], lv denied 44 N.Y.3d 1028, 246 N.Y.S.3d 319, 272 N.E.3d 1156 [2025] ).  Given the valid appeal waiver, defendant's challenge to the perceived severity of the sentence imposed is precluded (see People v. Sweeney, 246 A.D.3d 1163, 1165, 250 N.Y.S.3d 295 [3d Dept 2026];  People v. DeCutler, 245 A.D.3d 1111, 1112, 250 N.Y.S.3d 290 [3d Dept 2026] ).

ORDERED that the judgment is affirmed.

Powers, J.

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