PEOPLE v. WEST (2020)

MEMORANDUM AND ORDER

In 2016, defendant pleaded guilty to criminal mischief in the third degree and was placed on interim probation.  As the result of a January 2017 incident, she faced new charges and a petition alleging that she had violated the terms of her interim probation.  Defendant was found to have violated her interim probation after a hearing, and that matter was adjourned for sentencing.  In May 2017, an agreement was reached to address sentencing in that matter and resolve the charges arising from the January 2017 incident.  As is relevant here, defendant pleaded guilty to assault in the second degree in satisfaction of a superior court information addressing her January 2017 conduct and was sentenced to a prison term of 31/212 years to be followed by postrelease supervision of three years.  She was then sentenced to a concurrent jail term of one year upon her 2016 conviction of criminal mischief in the third degree.  As contemplated by the agreement, County Court (Feldstein, J.) gave defendant five days to put her affairs in order before surrendering herself to begin serving her sentences.

Defendant failed to appear as directed, was apprehended in Florida several months later and was then charged in an indictment with bail jumping in the second degree.  Following unsuccessful efforts to dismiss the indictment or reduce the charge, defendant pleaded guilty as charged.  County Court (Hoye, J.) sentenced defendant, as a second felony offender, to a prison term of 11/212 to 3 years to run concurrently with her 2017 sentences.  Defendant appeals solely from the judgment convicting her of bail jumping in the second degree.

We affirm.  Defendant argues that the indictment “does not effectively charge ․ [her] with the commission of” bail jumping in the second degree, a jurisdictional challenge that survives her guilty plea (People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978];  accord People v. Wilder, 69 N.Y.2d 870, 872, 514 N.Y.S.2d 715, 507 N.E.2d 308 [1987];  see People v. Park, 163 A.D.3d 1060, 1064, 81 N.Y.S.3d 321 [2018] ).  She bases that argument upon the fact that bail jumping in the second degree requires that a defendant's failure to appear occur after having been “released from custody or allowed to remain at liberty, either upon bail or upon his [or her] own recognizance, upon condition that he [or she] will subsequently appear personally in connection with a charge against him [or her] of committing a felony” (Penal Law § 215.56;  see People v. Wilder, 93 N.Y.2d 352, 359, 690 N.Y.S.2d 483, 712 N.E.2d 652 [1999] ).  Although defendant persuasively argues that her actions did not constitute bail jumping in the second degree,¹ her unchallenged guilty plea signaled her “intention not to litigate the question of [her] guilt,” which places that issue beyond our review (People v. Lynn, 28 N.Y.2d 196, 201, 321 N.Y.S.2d 74, 269 N.E.2d 794 [1971];  see People v. Taylor, 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755 [1985];  see generally People v. Hill, 220 A.D.2d 905, 906, 632 N.Y.S.2d 691 [1995] ).  What is before us is whether the indictment was jurisdictionally defective, which occurs where the indictment alleges acts that “simply do not constitute a crime” or fails to allege acts “constituting every material element of the crime charged” (People v. Iannone, 45 N.Y.3d at 600, 412 N.Y.S.2d 110, 384 N.E.2d 656;  see 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 that regard, the indictment specifically cited Penal Law § 215.56 as the basis for the charge, which “operate[d] without more to constitute allegations of all the elements of the crime” (People v. Cohen, 52 N.Y.2d 584, 586, 439 N.Y.S.2d 321, 421 N.E.2d 813 [1981];  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. Hummel–Parker, 171 A.D.3d 1397, 1398, 97 N.Y.S.3d 539 [2019] ).  Further, because a conviction occurs upon a plea or verdict of guilty, but the underlying criminal action remains pending until sentencing, the indictment alleged acts constituting bail jumping in the second degree by accusing defendant of failing to appear “in relation to a conviction” (see CPL 1.20[13]–[16];  see e.g. People v. Gilleo, 39 A.D.3d 560, 562, 835 N.Y.S.2d 221 [2007] ).  Thus, there was no jurisdictional defect in the indictment.

By pleading guilty, defendant also forfeited her arguments regarding the instructions given to, and the evidence heard by, the grand jury (see People v. Guerrero, 28 N.Y.3d 110, 115–116, 42 N.Y.S.3d 80, 65 N.E.3d 51 [2018];  People v. Taylor, 65 N.Y.2d at 5, 489 N.Y.S.2d 152, 478 N.E.2d 755;  People v. Suddard, 164 A.D.3d 950, 951, 77 N.Y.S.3d 910 [2018], lv denied 32 N.Y.3d 1178, 97 N.Y.S.3d 615, 121 N.E.3d 243 [2019];  People v. Brice, 146 A.D.3d 1152, 1154, 46 N.Y.S.3d 282 [2017], lv denied 29 N.Y.3d 996, 57 N.Y.S.3d 717, 80 N.E.3d 410 [2017];  People v. Cole, 118 A.D.3d 1098, 1099, 987 N.Y.S.2d 247 [2014] ).  Contrary to defendant's suggestion, neither the apparent desire of the parties nor our authority to take corrective action in the interest of justice permits us to review issues forfeited by a plea of guilty (see CPL 470.15[6];  People v. Howe, 56 N.Y.2d 622, 624, 450 N.Y.S.2d 477, 435 N.E.2d 1092 [1982];  People v. Stephens, 122 A.D.2d 606, 608, 505 N.Y.S.2d 280 [1986], lv denied 68 N.Y.2d 817, 507 N.Y.S.2d 1035, 499 N.E.2d 884 [1986];  People v. Morris, 111 A.D.2d 414, 414, 489 N.Y.S.2d 610 [1985] ).  Finally, we note that defendant received the minimum sentence allowed by law and, as such, any claim that it is harsh and excessive is without merit.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   Defendant could not have committed bail jumping in the second degree because there was no pending felony charge against her at the time of her nonappearance (see generally Matter of Natasha C., 80 N.Y.2d 678, 681, 593 N.Y.S.2d 986, 609 N.E.2d 526 [1993] ).  The criminal action against defendant terminated upon the imposition of her sentence (see CPL 1.20[14]-[16] ), and her subsequent nonappearance was not connected to an appeal or any other criminal action (see CPL 1.20[18];  460.50;  compare People v. Gilleo, 39 A.D.3d 560, 562, 835 N.Y.S.2d 221 [2007] [nonappearance between conviction and sentencing];  People v. Halm, 256 A.D.2d 630, 631, 683 N.Y.S.2d 292 [1998], lv denied 92 N.Y.2d 1049, 685 N.Y.S.2d 428, 708 N.E.2d 185 [1999] [nonappearance following release on bail pending appeal] ).

Clark, J.

Lynch, J.P., Mulvey and Colangelo, JJ., concur.