PEOPLE v. DUDLEY

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Ellis D. DUDLEY, also known as L.S., Defendant-Appellant.

Decided: April 28, 2006

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, GORSKI, MARTOCHE, AND HAYES, JJ. James A. Leone, Auburn, for Defendant-Appellant. James B. Vargason, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Plaintiff-Respondent.

 On appeal from a judgment convicting him, upon his plea of guilty, of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ), defendant contends that the indictment was jurisdictionally defective because the date of the offenses charged was incorrect.   That contention is without merit.  “[A] mistake with respect to date, time or place is a technical defect rather than ‘a jurisdictional defect vital to the sufficiency of the indictment’ ” (People v. Cox, 275 A.D.2d 924, 925, 713 N.Y.S.2d 708, lv. denied 95 N.Y.2d 962, 722 N.Y.S.2d 479, 745 N.E.2d 399, quoting People v. Kepple, 98 A.D.2d 783, 783, 469 N.Y.S.2d 801).   Thus, “because defendant's contention raises only a technical defect rather than a jurisdictional one, that contention was forfeited by defendant's plea of guilty” (Cox, 275 A.D.2d at 925, 713 N.Y.S.2d 708;  see People v. Hansen, 95 N.Y.2d 227, 231, 715 N.Y.S.2d 369, 738 N.E.2d 773;  see also People v. Williams, 25 A.D.3d 927, 929, 807 N.Y.S.2d 470).   In any event, County Court properly granted the People's motion to amend the indictment to state the correct date of the offenses charged (see CPL 200.70[1];  People v. Davis, 21 A.D.3d 590, 592, 799 N.Y.S.2d 324;  People v. Butler, 272 A.D.2d 900, 708 N.Y.S.2d 218, lv. denied 95 N.Y.2d 864, 715 N.Y.S.2d 218, 738 N.E.2d 366).

 The further contention of defendant that he was deprived of his constitutional right to a speedy trial is not forfeited by his guilty plea (see People v. Taylor, 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755), nor is it foreclosed by his waiver of the right to appeal (see People v. Campbell, 97 N.Y.2d 532, 535, 743 N.Y.S.2d 396, 769 N.E.2d 1288).   Nevertheless, “[w]hile defendant did make a motion to dismiss the indictment under CPL 30.30, he made no motion to dismiss based on the contention he now advances ․ [and thus] has failed to preserve that contention for our review” (People v. Cedeno, 52 N.Y.2d 847, 848, 437 N.Y.S.2d 72, 418 N.E.2d 665;  see People v. Lieberman, 47 N.Y.2d 931, 419 N.Y.S.2d 946, 393 N.E.2d 1019).   In any event, that contention is without merit (see People v. Gaylord, 210 A.D.2d 980, 981, 621 N.Y.S.2d 247, lv. denied 84 N.Y.2d 1031, 623 N.Y.S.2d 187, 647 N.E.2d 459;  see generally People v. Taranovich, 37 N.Y.2d 442, 444-445, 373 N.Y.S.2d 79, 335 N.E.2d 303;  People v. Walker, 2 A.D.3d 1454, 769 N.Y.S.2d 435, lv. denied 2 N.Y.3d 808, 781 N.Y.S.2d 307, 814 N.E.2d 479).

 Finally, the waiver by defendant of the right to appeal encompasses his contention that the sentence is unduly harsh or severe (see People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416;  People v. Joyner, 19 A.D.3d 1129, 796 N.Y.S.2d 818).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: