PEOPLE v. WHEELER (2023)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Warren County (John S. Hall Jr., J.), rendered May 15, 2019, convicting defendant upon his plea of guilty of the crimes of possession of a sexual performance by a child, criminal solicitation in the third degree and attempted dissemination of indecent material to a minor in the first degree.

Defendant was charged in a 13–count indictment with, among other offenses, various sex crimes.  After rejecting the People's initial plea offer and following additional negotiations, defendant was afforded the opportunity to plead guilty to one count each of possession of a sexual performance by a child, criminal solicitation in the third degree and attempted dissemination of indecent material to a minor in the first degree with the understanding that he would be sentenced as a second felony offender to an aggregate prison term of 6 to 12 years.  The plea agreement also required defendant to waive his right to appeal.  Defendant entered an Alford plea to the subject crimes, and the matter proceeded immediately to sentencing, at which time County Court sentenced defendant upon each conviction to a prison term of 2 to 4 years – said terms to run consecutively.  This appeal ensued.

Preliminarily, we reject defendant's assertion that the waiver of appeal is invalid.  Although the People concede that the written waiver contained overbroad language and, hence, was insufficient to establish defendant's valid waiver of the right to appeal, we are satisfied that County Court's oral colloquy demonstrated that defendant understood the ramifications of the right relinquished.  County Court explained the nature of the waiver of appeal and advised defendant that such waiver was separate and distinct from the trial-related rights that defendant would be forfeiting by pleading guilty.  Defendant indicated that he understood County Court's explanation of the waiver but further inquired.  County Court's response indicated that certain rights remained.  This exchange, in our view, demonstrates that defendant understood that some appellate review survived the waiver, leading us to conclude that defendant validly waived his right to appeal (see People v. Vittengl, 203 A.D.3d 1390, 1391, 163 N.Y.S.3d 715 [3d Dept. 2022];  compare People v. Magee, 207 A.D.3d 1003, 1003–1004, 170 N.Y.S.3d 920 [3d Dept. 2022];  People v. Knowlton, 207 A.D.3d 1002, 1002–1003, 170 N.Y.S.3d 921 [3d Dept. 2022]).  Given the valid appeal waiver, defendant's challenge to the agreed-upon sentence imposed is precluded (see People v. Blackburn, 210 A.D.3d 1238, 1240, 177 N.Y.S.3d 809 [3d Dept. 2022]).

Although defendant's challenge to the voluntariness of his Alford plea normally would require preservation via an appropriate postallocution motion, County Court sentenced defendant immediately following defendant's guilty plea and, hence, “defendant had no practical opportunity to move to withdraw his plea prior to sentencing” (People v. Pace, 192 A.D.3d 1274, 1275, 142 N.Y.S.3d 678 [3d Dept. 2021] [internal quotation marks and citation omitted], lv denied 37 N.Y.3d 973, 150 N.Y.S.3d 706, 172 N.E.3d 819 [2021];  see People v. Wright, 154 A.D.3d 1015, 1016, 60 N.Y.S.3d 860 [3d Dept. 2017], lv denied 30 N.Y.3d 1065, 71 N.Y.S.3d 15, 94 N.E.3d 497 [2017]).  Accordingly, this argument is properly before us.  As to the merits, an Alford plea is permissible where “it is the product of a voluntary and rational choice, and the record before the court contains strong evidence of actual guilt” (Matter of Silmon v. Travis, 95 N.Y.2d 470, 475, 718 N.Y.S.2d 704, 741 N.E.2d 501 [2000];  see People v. Vittengl, 203 A.D.3d at 1391–1392, 163 N.Y.S.3d 715;  People v. Herron, 199 A.D.3d 1476, 1477, 157 N.Y.S.3d 221 [4th Dept. 2021]).  In this regard, the record reflects that defendant had reviewed “all” of the discovery materials upon which the People relied and had discussed the strength and implications thereof with counsel, as a result of which defendant elected to enter an Alford plea in an effort to avoid a lengthier period of incarceration (see People v. Tchiyuka, 160 A.D.3d 1488, 1489, 76 N.Y.S.3d 340 [4th Dept. 2018];  People v. Morehouse, 140 A.D.3d 1202, 1203, 33 N.Y.S.3d 491 [3d Dept. 2016], lv denied 28 N.Y.3d 934, 40 N.Y.S.3d 362, 63 N.E.3d 82 [2016]).  As the record both demonstrates that defendant's decision in this regard was the product of a voluntary and rational choice and contains strong evidence of defendant's guilt, the court's acceptance of the Alford plea was proper (see People v. Tchiyuka, 160 A.D.3d at 1489, 76 N.Y.S.3d 340;  People v. Hinkle, 56 A.D.3d 1210, 1210, 867 N.Y.S.2d 312 [4th Dept. 2008];  People v. Kyzer, 21 A.D.3d 1212, 1213–1214, 801 N.Y.S.2d 439 [3d Dept. 2005]).

Defendant's challenge to the legal sufficiency of the evidence before the grand jury, as well any argument addressed to the adequacy or accuracy of the instructions to the grand jury, is foreclosed by his guilty plea (see People v. Torres, 199 A.D.3d 1076, 1077–1078, 156 N.Y.S.3d 565 [3d Dept. 2021], lv denied 37 N.Y.3d 1165, 160 N.Y.S.3d 717, 181 N.E.3d 1145 [2022];  People v. King, 185 A.D.3d 1090, 1090–1091, 126 N.Y.S.3d 804 [3d Dept. 2020];  People v. Suddard, 164 A.D.3d 950, 951, 77 N.Y.S.3d 910 [3d Dept. 2018], lv denied 32 N.Y.3d 1178, 97 N.Y.S.3d 615, 121 N.E.3d 243 [2019]).  Defendant's related assertion – that the indictment was jurisdictionally defective regarding, as relevant here, count 9 charging attempted dissemination of indecent material to a minor in the first degree – survives his valid appeal waiver and guilty plea (see People v. Mathis, 185 A.D.3d 1094, 1096, 126 N.Y.S.3d 795 [3d Dept. 2020];  People v. Danielson, 170 A.D.3d 1430, 1432, 96 N.Y.S.3d 754 [3d Dept. 2019], lv denied 33 N.Y.3d 1030, 102 N.Y.S.3d 515, 126 N.E.3d 165 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 486, 205 L.Ed.2d 280 [2019]) but is unpersuasive.  “An indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime – for instance, if it fails to allege that the defendant committed acts constituting every material element of the crime charged” (People v. Turner, 202 A.D.3d 1375, 1376, 163 N.Y.S.3d 696 [3d Dept. 2022] [internal quotation marks and citations omitted], lv denied 38 N.Y.3d 1036, 169 N.Y.S.3d 244, 189 N.E.3d 351 [2022];  see People v. Hardie, 211 A.D.3d 1418, 1419, 180 N.Y.S.3d 691 [3d Dept. 2022], lv denied 39 N.Y.3d 1111, 186 N.Y.S.3d 841 (2), 208 N.E.3d 69 [2023]).  Inasmuch as count 9 of the indictment incorporated by reference the specific provisions of the Penal Law under which defendant was charged (see Penal Law §§ 110.00, 235.22), this count of the indictment was not jurisdictionally defective (see People v. Mathis, 185 A.D.3d at 1096, 126 N.Y.S.3d 795;  People v. Wilburn, 158 A.D.3d 894, 894, 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's further claim – that the act of one person handing an SD card depicting nudity to another does not constitute a “communication” within the meaning of Penal Law § 235.22(1) and, hence, is not actually a crime – is equally unpersuasive.  Simply put, it is commonly understood that an SD card requires some form of electronic medium (such as a computer, smartphone or similar device) (see Penal Law § 156.00[1]) and corresponding data processing program (see Penal Law § 156.00[2]) in order for the contents stored on the SD card (see Penal Law § 156.00[3]) to be accessed by and communicated to another.  In our view, the devices, programs, data and materials referenced in Penal Law § 156.00 bring the conduct alleged in count 9 of the indictment within the purview of Penal Law § 235.22 – particularly in light of the statute's stated purpose of “criminaliz[ing] the activities of adults who engage minors in sexually infused communication[s]” (People v. Kozlow, 8 N.Y.3d 554, 559, 838 N.Y.S.2d 800, 870 N.E.2d 118 [2007] [internal quotation marks, emphasis and citation omitted]).  Finally, as we discern no infirmities in the indictment, defendant's ineffective assistance of counsel claim – premised upon counsel's alleged “failure to apprehend and address the defects in the indictment” – necessarily must fail.  Defendant's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.

ORDERED that the judgment is affirmed.

McShan, J.

Egan Jr., J.P., Lynch, Aarons and Fisher, JJ., concur.