PEOPLE v. JACKSON

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

The PEOPLE of the State of New York, Respondent, v. Malcolm M. JACKSON, Appellant.

Decided: April 26, 2007

Before:  CARDONA, P.J., SPAIN, CARPINELLO, ROSE and LAHTINEN, JJ. Gregory T. Rinckey, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Alfred D. Chapleau of counsel), for respondent.

Appeal from a judgment of the County Court of Schenectady County (Catena, J.), rendered March 20, 2003, convicting defendant upon his plea of guilty of the crime of murder in the second degree.

Defendant was charged in an indictment with two counts of murder in the second degree (one count alleging intentional murder and the other depraved indifference murder) and three counts of tampering with physical evidence stemming from allegations that he strangled his girlfriend in the course of an argument and subsequently attempted to dispose of her body and other physical evidence.   He thereafter pleaded guilty to the count in the indictment alleging depraved indifference murder in full satisfaction of the indictment, waived his right to appeal and was sentenced to 20 years to life in prison.

 Defendant raises two principal contentions for the first time on this appeal.   First, he challenges the factual sufficiency of his 2003 plea allocution as inadequate.   Under settled precedent, this claim is entirely foreclosed by his valid appeal waiver (see People v. Michalski, 15 A.D.3d 918, 918, 788 N.Y.S.2d 776 [2005], lvs. denied 5 N.Y.3d 854, 806 N.Y.S.2d 174, 840 N.E.2d 143 [2005], 6 N.Y.3d 756, 810 N.Y.S.2d 424, 843 N.E.2d 1164 [2006];  see also People v. Missimer, 32 A.D.3d 1114, 1115, 821 N.Y.S.2d 485 [2006], lv. denied 7 N.Y.3d 927, 827 N.Y.S.2d 696, 860 N.E.2d 998 [2006];  People v. Jackson, 30 A.D.3d 824, 824-825, 817 N.Y.S.2d 731 [2006] ).

 Second, he contends that his conviction must be vacated because the admitted conduct underlying the count of the indictment charging depraved indifference murder in the second degree no longer meets the definition of that crime as modified and reconfigured by subsequent Court of Appeals decisions (see People v. Feingold, 7 N.Y.3d 288, 293-294, 819 N.Y.S.2d 691, 852 N.E.2d 1163 [2006];  People v. Suarez, 6 N.Y.3d 202, 210-214, 811 N.Y.S.2d 267, 844 N.E.2d 721 [2005];  People v. Payne, 3 N.Y.3d 266, 272, 786 N.Y.S.2d 116, 819 N.E.2d 634 [2004] ).   We conclude that this argument is similarly foreclosed by defendant's appeal waiver.   Significantly, under established principles, “an appeal waiver will encompass any issue that does not involve a right of constitutional dimension going to ‘the very heart of the process' ” (People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006], quoting People v. Hansen, 95 N.Y.2d 227, 230, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ).   Here, defendant's claim is neither of a constitutional dimension nor does it fall within any of the few recognized categories of appellate claims which have been held to be nonwaivable “because of a larger societal interest in their correct resolution” (People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992];  see People v. Lopez, supra at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Campbell, 97 N.Y.2d 532, 535, 743 N.Y.S.2d 396, 769 N.E.2d 1288 [2002];  People v. Seaberg, 74 N.Y.2d 1, 9-10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ).   Defendant understood he was pleading guilty to depraved indifference murder in the second degree in full satisfaction of a five-count indictment, and that he was waiving all appeal rights, thereby foregoing his trial-related rights and nearly all appeal-related claims.   Under these circumstances, enforcing such an appeal waiver is merely “holding defendants to bargains they have made” (People v. Seaberg, supra at 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022) as “bargains fairly made should signal an end to the litigation, not a beginning” (id. at 8, 543 N.Y.S.2d 968, 541 N.E.2d 1022).   Since defendant's claim does not fall into any recognized category which survives appeal waivers (see People v. Lopez, supra at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Callahan, supra at 280, 590 N.Y.S.2d 46, 604 N.E.2d 108;  People v. Seaberg, supra at 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022) and, importantly, involves no danger of miscarriage of justice (see Policano v. Herbert, 7 N.Y.3d 588, 604, 825 N.Y.S.2d 678, 859 N.E.2d 484 [2006] ), the appeal waiver is dispositive.

 Finally, we note that defendant's appeal waiver does not foreclose his argument that the count of the indictment charging depraved indifference murder was jurisdictionally defective (see People v. Simmons, 27 A.D.3d 786, 786-787, 811 N.Y.S.2d 460 [2007] );  however, our review reveals no merit to that claim (see id.;  People v. Downs, 26 A.D.3d 525, 526, 807 N.Y.S.2d 743 [2006], lv. denied 6 N.Y.3d 847, 816 N.Y.S.2d 753, 849 N.E.2d 976 [2006];  People v. Champion, 20 A.D.3d 772, 774, 798 N.Y.S.2d 567 [2005] ).   Defendant's remaining arguments are either foreclosed by the appeal waiver or without merit.

ORDERED that the judgment is affirmed.

CARDONA, P.J.

SPAIN, CARPINELLO, ROSE and LAHTINEN, JJ., concur.

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