PEOPLE v. JACKSON

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Ponel JACKSON, Defendant-Appellant.

Decided: September 28, 2001

PRESENT:  PIGOTT, JR., P.J., HAYES, WISNER, KEHOE and BURNS, JJ. Cynthia B. Brennan, for defendant-appellant. Christopher T. Valdina, for plaintiff-respondent.

On appeal from a judgment convicting him upon his plea of guilty of burglary in the second degree (Penal Law § 140.25[2] ) and sentencing him as a second violent felony offender to a determinate term of incarceration of 10 years, defendant contends that the felony complaint that commenced this criminal action was facially insufficient;  that police engaged in conduct that deprived him of due process;  that the plea allocution is factually insufficient;  and that the sentence is unduly harsh or severe.

 Defendant was convicted upon his plea of guilty to a valid superior court information, which superseded the felony complaint.   Thus, any insufficiency in the initiating accusatory instrument is irrelevant (see, People v. Black, 270 A.D.2d 563, 564-565, 705 N.Y.S.2d 696).   Defendant's challenge to the factual sufficiency of the plea allocution lacks merit.   Although County Court had a duty to conduct further inquiry based upon the initial insistence of defendant that he was innocent of burglary (see, People v. Lopez, 71 N.Y.2d 662, 665-667, 529 N.Y.S.2d 465, 525 N.E.2d 5), the court fulfilled that duty, ultimately eliciting the admissions of defendant that he knew he had no right to be in the victim's house and entered with the intent of stealing the victim's VCR. We have considered defendant's remaining contentions and conclude that they are without merit.

Judgment unanimously affirmed.

MEMORANDUM: