PEOPLE v. EDWARDS (2020)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Madison County (O'Sullivan, J.), rendered September 10, 2018, convicting defendant upon his plea of guilty of the crime of sexual abuse in the first degree.

Defendant waived indictment and pleaded guilty to a superior court information (hereinafter SCI) charging him with sexual abuse in the first degree.¹  Defendant moved to dismiss the SCI, asserting that it was jurisdictionally defective because it did not allege every element of the crime charged.  County Court denied the motion and, thereafter, sentenced defendant in accordance with the terms of the plea agreement.  Defendant appeals.

We are unpersuaded by defendant's sole contention on appeal that the SCI is jurisdictionally defective because it failed to allege that the touching of the victim's sexual areas was for the purpose of sexual gratification.  The SCI specifically referenced that defendant violated Penal Law § 130.65(3), which states that “[a] person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact ․ [w]hen that other person is less than [11] years old.”  The term “sexual contact” is expressly contained in the SCI and is defined in Penal Law § 130.00(3) as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party.”  Incorporating specific reference to the statute that defines sexual abuse in the first degree operates not only to constitute allegations of all of the elements of the crime charged, “but also an allegation of the statutory definitions of those elements” in order to survive a jurisdictional challenge (People v. Diaz, 233 A.D.2d 777, 778, 650 N.Y.S.2d 436 [1996];  see People v. D'Angelo, 98 N.Y.2d 733, 735, 750 N.Y.S.2d 811, 780 N.E.2d 496 [2002];  People v. Wilder, 69 N.Y.2d 888, 892, 515 N.Y.S.2d 1037, 507 N.E.2d 1107 [1987];  People v. Hummel–Parker, 171 A.D.3d 1397, 1398, 97 N.Y.S.3d 539 [2019];  People v. Suits, 158 A.D.3d 949, 951, 71 N.Y.S.3d 664 [2018] ).  Furthermore, such reference to the statute and the elements of the crime charged effectively afforded defendant “fair notice of the charges made against him” (People v. Ray, 71 N.Y.2d 849, 850, 527 N.Y.S.2d 740, 522 N.E.2d 1037 [1988] [internal quotation marks and citation omitted] );  accord People v. Benn, 159 A.D.3d 1272, 1272, 73 N.Y.S.3d 678 [2018], lv denied 32 N.Y.3d 935, 84 N.Y.S.3d 861, 109 N.E.3d 1161 [2018];  People v. Decker, 139 A.D.3d 1113, 1115, 30 N.Y.S.3d 751 [2016], lv denied 28 N.Y.3d 928, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016] ).  Accordingly, defendant's contention that the SCI is jurisdictionally defective is without merit.  To the extent that defendant challenges the nonjurisdictional factual sufficiency of the SCI, such claim is foreclosed by his guilty plea (see People v. Beattie, 80 N.Y.2d 840, 842, 587 N.Y.S.2d 585, 600 N.E.2d 216 [1992];  People v. Gannon, 167 A.D.3d 1163, 1164, 88 N.Y.S.3d 720 [2018];  People v. Chaney, 160 A.D.3d 1281, 1283, 76 N.Y.S.3d 257 [2018], lv denied 31 N.Y.3d 1146, 83 N.Y.S.3d 427, 108 N.E.3d 501 [2018] ).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   Although the record does not contain a waiver of indictment, we take judicial notice that one was executed by defendant and approved by County Court on November 16, 2017.

Devine, J.

Garry, P.J., Mulvey, Pritzker and Colangelo, JJ., concur.