PEOPLE v. OGUNMEKAN

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

The PEOPLE of the State of New York, Respondent, v. Fayosi OGUNMEKAN, also known as Larry Moore, Defendant–Appellant.

The People of the State of New York, Respondent, v. Dwaine Eric Coleman, Defendant–Appellant.

Decided: May 24, 2012

GONZALEZ, P.J., ANDRIAS, SAXE, DeGRASSE, ROMÁN, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for Fayosi Ogunmekan, appellant. Richard M. Greenberg, Office of the Appellate Defender, New York (Risa Gerson of counsel), for Dwaine Eric Coleman, appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), for respondent.

Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered August 6, 2009, as amended September 24, 2009, convicting defendant Fayosi Ogunmekan, upon his plea of guilty, of grand larceny in the second degree (two counts), grand larceny in the third degree (seven counts), identity theft in the first degree (ten counts) and scheme to defraud in the first degree, and sentencing him, as a second felony offender, to an aggregate term of 6 to 12 years, unanimously affirmed.   Judgment, same court and Justice, rendered June 25, 2009, convicting defendant Dwaine Coleman, upon his plea of guilty, of attempted grand larceny in the third degree and identity theft in the second degree, and sentencing him, as a second felony offender, to an aggregate term of 1 1/212 to 3 years, unanimously affirmed.

 The error in certain counts of the indictment with respect to the name of the identity theft victim, and the court's corrective action constituted, at most, nonjurisdictional defects (see People v. Iannone, 45 N.Y.2d 589, 594, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978] ).   Accordingly, defendants' claims in this regard are forfeited by their guilty pleas, as well as their valid waivers of the right to appeal.

The counts at issue set forth every element of the crime of identity theft in the first degree (Penal Law § 190.79[1] ).   Therefore, they were not jurisdictionally defective (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. Ray, 71 N.Y.2d 849, 850, 527 N.Y.S.2d 740, 522 N.E.2d 1037 [1988] ).

 However, each of these counts named, as the victim, an entity whose identity was not actually assumed by defendants under the underlying factual circumstances of the case;  instead, a different entity should have been named.   Thus, the defect was not in the language of the indictment, but in a contradiction between its language and the underlying facts, creating an essentially latent defect.   The substance of defendants' complaint about these counts is not that they facially fail to state a crime, but that the evidence that was presented to the grand jury, and would have been presented had defendants chosen to go to trial, did not sustain the allegations because the evidence did not match the named victim (see People v. Greeman, 49 A.D.3d 463, 464, 853 N.Y.S.2d 557 [2008], lv. denied 10 N.Y.3d 934, 862 N.Y.S.2d 341, 892 N.E.2d 407 [2008] ).   However, issues concerning factual guilt are normally not reviewable on appeal when a defendant pleads guilty (People v. Taylor, 65 N.Y.2d 1, 489 N.Y.S.2d 152, 478 N.E.2d 755 [1985];  People v. Thomas, 53 N.Y.2d 338, 441 N.Y.S.2d 650, 424 N.E.2d 537 [1981] ).

Coleman's challenge to the court's amendment of the indictment to substitute the name of one victim with that of another is similarly forfeited, as well as being affirmatively waived, since that claim raises no jurisdictional defect (see People v. Martinez, 52 A.D.3d 68, 71, 855 N.Y.S.2d 522 [2008], lv. denied 11 N.Y.3d 791, 866 N.Y.S.2d 617, 896 N.E.2d 103 [2008] );  in any event, the amendment was permissible (see People v. Gray, 157 A.D.2d 596, 550 N.Y.S.2d 344 [1990], lv. denied, 75 N.Y.2d 966, 556 N.Y.S.2d 251, 555 N.E.2d 623 [1990] ).   Defendants' remaining arguments relating to the indictment are likewise forfeited.   To the extent defendants are challenging their guilty pleas as involuntarily made, those claims are without merit.

 The court properly adjudicated Ogunmekan a second felony offender. Ogunmekan did not establish that the prior conviction upon which the enhancement was based was obtained in violation of his federal constitutional rights (see CPL 400.21[7][b] ).  The court conducted an evidentiary hearing on Ogunmekan's claim that his 2003 guilty plea was the product of ineffective assistance of counsel, and there is no basis for disturbing the court's credibility determinations.   In any event, aside from questions of credibility, and regardless of the retroactivity of Padilla v. Kentucky, 559 U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 [2010] both in general and in this procedural posture (see People v. Catalanotte, 72 N.Y.2d 641, 536 N.Y.S.2d 16, 532 N.E.2d 1244 [1988], cert. denied 72 N.Y.2d 641, 536 N.Y.S.2d 16, 532 N.E.2d 1244 [1988] ), regardless of the applicability of Padilla to a plea that did not actually have any immigration consequences until the defendant's rearrest, and regardless of what immigration-related advice counsel provided or failed to provide, we conclude that Ogunmekan did not establish the prejudice prong of a Padilla claim (see Padilla, ––– U.S. ––––, ––––, 130 S.Ct. at 1483).