PEOPLE v. PERSON

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

PEOPLE of the State of New York, Respondent, v. Richard E. PERSON, Appellant.

Decided: December 31, 1998

Present:  DENMAN, P.J., GREEN, HAYES, CALLAHAN and BALIO, JJ. John Cirando, Syracuse, for appellant. John Tunney, Bath, for respondent.

 Defendant contends that his waiver of indictment was ineffective because he had not been held for Grand Jury action at the time he executed the waiver (see, CPL 195.10[1][a] ).  The record does not support that contention.  “Where, as here, the record of the plea proceedings indicates that the court was satisfied with the sufficiency of the waiver and that it executed an order to that effect (see, CPL 195.30), we may presume that the matter was properly before it” (People v. McCarthy, 186 A.D.2d 1067, 590 N.Y.S.2d 769, lv. denied 81 N.Y.2d 843, 595 N.Y.S.2d 742, 611 N.E.2d 781;  see, People v. Chad S., 237 A.D.2d 986, 656 N.Y.S.2d 990, lv. denied 90 N.Y.2d 856, 661 N.Y.S.2d 183, 683 N.E.2d 1057;  People v. Washington, 138 A.D.2d 857, 858, 526 N.Y.S.2d 243).   By failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve for our review his challenge to the factual sufficiency of the plea allocution (see, CPL 470.05 [2];  People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Hill [appeal No. 1], 254 A.D.2d 726, 678 N.Y.S.2d 564).   Finally, the contention that defendant is entitled to credit for jail time served on his violation of probation conviction is not properly before this Court on direct appeal from the judgment of conviction (see, People v. Searor, 163 A.D.2d 824, 559 N.Y.S.2d 840, lv. denied 76 N.Y.2d 896, 561 N.Y.S.2d 559, 562 N.E.2d 884;  People v. Curtis, 143 A.D.2d 1030, 533 N.Y.S.2d 582, lv. denied 73 N.Y.2d 890, 538 N.Y.S.2d 803, 535 N.E.2d 1343).   A proceeding pursuant to CPLR article 78 to review the prison authorities' calculation of defendant's jail time credit is the appropriate procedural vehicle for raising that contention (see, People v. Searor, supra;  People v. Curtis, supra;  People v. Vivenzio, 103 A.D.2d 1044, 1045, 478 N.Y.S.2d 438).

Judgment unanimously affirmed.

MEMORANDUM: