PEOPLE v. SALMON (2020)

MEMORANDUM AND ORDER

Defendant was indicted and charged with two counts of criminal sale of a controlled substance in the third degree.  After initially rejecting a plea offer, and following various examinations to determine his competency to, among other things, assist in his own defense, defendant elected to plead guilty to one count of attempted criminal sale of a controlled substance in the third degree in full satisfaction of the indictment.  The plea agreement, which required defendant to waive his right to appeal, contemplated that defendant would be sentenced to five years of probation.  Following a detailed plea colloquy, defendant entered an Alford plea of guilty to the reduced charge, and County Court thereafter imposed the contemplated sentence of probation.  This appeal ensued.

We affirm.  Initially, we reject defendant's assertion that his waiver of the right to appeal was invalid.  County Court explained that defendant's appellate rights were separate and distinct from the trial-related rights that defendant was forfeiting by virtue of his guilty plea, and defendant acknowledged both the nature of the waiver and his willingness to relinquish such right (see People v. Bowden, 177 A.D.3d 1037, 1038, 114 N.Y.S.3d 482 [2019]; People v. Bridge, 166 A.D.3d 1168, 1168, 86 N.Y.S.3d 345 [2018], lv denied 32 N.Y.3d 1124, 93 N.Y.S.3d 262, 117 N.E.3d 821 [2018]; People v. Lambert, 151 A.D.3d 1119, 1119, 55 N.Y.S.3d 526 [2017], lv denied 29 N.Y.3d 1092, 63 N.Y.S.3d 9, 85 N.E.3d 104 [2017] ).  Additionally, defendant executed a detailed written waiver in open court, and “County Court confirmed that defense counsel had [reviewed] the waiver of appeal with defendant and that defendant had no further questions regarding the written appeal waiver prior to signing it in open court” (People v. Tietje, 171 A.D.3d 1355, 1356, 98 N.Y.S.3d 370 [2019], lv denied 33 N.Y.3d 1109, 106 N.Y.S.3d 656, 130 N.E.3d 1266 [2019]; see People v. Sassenscheid, 162 A.D.3d 1108, 1109, 78 N.Y.S.3d 491 [2018] ).  We therefore are satisfied that defendant's waiver of the right to appeal was knowing, intelligent and voluntary.  Given defendant's valid appeal waiver, his challenge to the perceived severity of his sentence is precluded (see People v. Lambert, 151 A.D.3d at 1120, 55 N.Y.S.3d 526; People v. Macon, 142 A.D.3d 739, 739, 36 N.Y.S.3d 752 [2016], lvs denied 28 NY3d 1073, 1075, 47 N.Y.S.3d 232, 234, 69 N.E.3d 1028, 1030 [2016] ).

As for defendant's assertion that the indictment was facially defective in that it did not specify the “time and exact location” of the purported crimes, defendant did not move to dismiss the indictment upon this ground (see CPL 210.20, 210.25); hence, his argument on this point is unpreserved and also is precluded by his guilty plea and appeal waiver – unless the defect alleged rises to the level of a nonwaivable jurisdictional defect (see People v. Slingerland, 101 A.D.3d 1265, 1265–1266, 955 N.Y.S.2d 690 [2012], lv denied 20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 [2013] ).  In this regard, “[a]n indictment is rendered jurisdictionally defective only if it does not charge the defendant with the commission of a particular crime, by, for example, failing to allege every material element of the crime charged, or alleging acts that do not equal a crime at all” (id. at 1266, 955 N.Y.S.2d 690 [internal quotation marks and citations omitted]; see People v. Sanford, 148 A.D.3d 1580, 1581, 51 N.Y.S.3d 728 [2017], lv denied 29 N.Y.3d 1133, 64 N.Y.S.3d 683, 86 N.E.3d 575 [2017]; People v. Franklin, 146 A.D.3d 1082, 1083–1084, 45 N.Y.S.3d 635 [2017], lvs denied 29 NY3d 946, 948, 54 N.Y.S.3d 377, 379, 76 N.E.3d 1080, 1082 [2017] ).  CPL 200.50(6) requires only that each count of the indictment contain a statement “that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time” (see People v. Smith, 137 A.D.3d 1323, 1325, 26 N.Y.S.3d 401 [2016], lvs denied 28 NY3d 973, 974, 43 N.Y.S.3d 260, 261, 66 N.E.3d 6, 7 [2016] ) – a requirement that was satisfied here – and neither the time of the offenses nor the location thereof were elements of the charged crime (see People v. Slingerland, 101 A.D.3d at 1266, 955 N.Y.S.2d 690).  Accordingly, defendant's challenge to the factual sufficiency of the indictment constitutes a waivable, nonjurisdictional defect (see People v. Hartle, 159 A.D.3d 1149, 1150, 72 N.Y.S.3d 639 [2018], lv denied 31 N.Y.3d 1082, 79 N.Y.S.3d 104, 103 N.E.3d 1251 [2018]; People v. Slingerland, 101 A.D.3d at 1266, 955 N.Y.S.2d 690; see generally People v. Young, 100 A.D.3d 1186, 1187–1188, 954 N.Y.S.2d 244 [2012], lv denied 21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013] ).  In any event, we note that the bill of particulars sets forth the date, approximate time and general location of the subject offenses, thus providing defendant with “fair notice of the accusations against [him] so that he could prepare a defense” (People v. Young, 100 A.D.3d at 1188, 954 N.Y.S.2d 244; see People v. LaPage, 53 A.D.3d 693, 695, 860 N.Y.S.2d 329 [2008] ).  Defendant's remaining arguments, to the extent not expressly addressed, have been examined and found to be lacking in merit.

ORDERED that the judgment is affirmed.

Clark, J.

Egan Jr., J.P., Lynch, Aarons and Reynolds Fitzgerald, JJ., concur.