PEOPLE v. ROSSBOROUGH

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The PEOPLE of the State of New York, Respondent, v. Ronald D. ROSSBOROUGH, Defendant–Appellant.

Decided: December 28, 2012

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ. Rosemarie Richards, Gilbertsville, for Defendant–Appellant. John C. Tunney, District Attorney, Bath (James P. Miller of Counsel), for Respondent.

On appeal from a judgment convicting him upon a plea of guilty of forgery in the second degree (Penal Law § 170.10[1] ), defendant contends that the superior court information (SCI) and waiver of indictment were jurisdictionally defective because they contain discrepancies in the date and location of the crime charged therein. We reject that contention. Although defendant is correct that a “valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” (People v. Harper, 37 N.Y.2d 96, 99, 371 N.Y.S.2d 467, 332 N.E.2d 336), an accusatory instrument is jurisdictionally defective “only if it does not effectively charge the defendant with the commission of a particular crime” (People v. Quamina, 207 A.D.2d 1030, 1030, 617 N.Y.S.2d 95, lv denied 84 N.Y.2d 1014, 622 N.Y.S.2d 926, 647 N.E.2d 132, quoting People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656). In the case relied upon by defendant, People v. Roe (191 A.D.2d 844, 845, 595 N.Y.S.2d 121), the court determined that the SCI was jurisdictionally defective because it charged defendant with a nonexistent crime. Here, however, the SCI effectively charged defendant with the commission of a particular crime, i.e., forgery in the second degree in violation of Penal Law § 170.10(1). Thus, any mistake in the SCI “with respect to date, time or place is a technical defect rather than a jurisdictional defect vital to the sufficiency of the [SCI] or the guilty plea entered thereto” (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 [internal quotation marks omitted]; see People v. Dudley, 28 A.D.3d 1182, 1183, 816 N.Y.S.2d 253, lv denied 7 N.Y.3d 788, 821 N.Y.S.2d 817, 854 N.E.2d 1281; People v. Kepple, 98 A.D.2d 783, 783, 469 N.Y.S.2d 801). Because the SCI is not jurisdictionally defective, defendant's challenges to the SCI are forfeited by defendant's plea of guilty (Cox, 275 A.D.2d at 925, 713 N.Y.S.2d 708), and in any event the valid waiver of the right to appeal encompasses those nonjurisdictional challenges (see People v. Nichols, 32 A.D.3d 1316, 1317, 821 N.Y.S.2d 534, lv denied 8 N.Y.3d 848, 830 N.Y.S.2d 707, 862 N.E.2d 799, reconsideration denied 8 N.Y.3d 988, 838 N.Y.S.2d 492, 869 N.E.2d 668). Contrary to the further contention of defendant, the record establishes that he freely and voluntarily waived indictment and consented to be prosecuted by way of an SCI (see CPL 195.10, 195.20; People v. Burney, 93 A.D.3d 1334, 1334, 940 N.Y.S.2d 507).

In addition, we reject the contention of defendant that his guilty plea was not knowing, voluntary, or intelligent. Although his contention survives his valid waiver of the right to appeal, defendant did not move to withdraw the plea or to vacate the judgment of conviction on that ground and thus failed to preserve that contention for our review (see People v. Russell, 55 A.D.3d 1314, 1314–1315, 864 N.Y.S.2d 587, lv denied 11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449; People v. Harrison, 4 A.D.3d 825, 826, 771 N.Y.S.2d 448, lv denied 2 N.Y.3d 740, 778 N.Y.S.2d 466, 810 N.E.2d 919).

Finally, we conclude that County Court did not err in sentencing defendant as a second felony offender. Whether defendant committed the crime at issue on January 6, 2010 or January 30, 2010 is of no moment inasmuch as, under either date, only nine years elapsed between the date of sentencing upon his prior conviction, i.e., January 30, 2001, and the date of the instant offense (see Penal Law § 70.06[1][b][iv] ). Thus, there is no basis to disturb defendant's sentence.

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

MEMORANDUM: