The People, etc., respondent, v. Patricio Yunga, appellant.

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

The People, etc., respondent, v. Patricio Yunga, appellant.

2013–10307 (Ind.No. 868/06)

Decided: November 26, 2014

REINALDO E. RIVERA, J.P. PETER B. SKELOS THOMAS A. DICKERSON BETSY BARROS, JJ. Labe M. Richman, New York, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Merri Turk Lasky, and Mariana Zelig of counsel), for respondent.

Argued—October 20, 2014


Appeal by the defendant from a judgment of the Supreme Court, Queens County (Chin–Brandt, J.), rendered September 19, 2006, convicting him of operating a motor vehicle while under the influence of alcohol, as a felony, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was convicted of operating a motor vehicle while under the influence of alcohol, as a felony, upon his plea of guilty.   Prior to pleading guilty, the defendant waived his right to be indicted by a grand jury and agreed to proceed by Superior Court Information.   The defendant, inter alia, challenges the validity of that waiver.

The defendant's challenge to the validity of his waiver of indictment is not forfeited by his plea of guilty and would not be precluded by any valid waiver of the right to appeal (see People v. Boston, 75 N.Y.2d 585, 589 n;  People v. Sze, 113 AD3d 795;  People v. Libby, 246 A.D.2d 669, 670–671).   Nor does that claim require preservation (see People v. Boston, 75 N.Y.2d at 589 n).

However, it is without merit.   The record does not support the defendant's assertion that he was not held for the action of a grand jury prior to his execution of the waiver of indictment (see People v. Hart, 171 A.D.2d 755, 756), as required by statute (see CPL 195.10[1][a] ).   The fact that the case was transferred from a local criminal court to the Supreme Court, which certified that all statutory requirements were met for a waiver of indictment, demonstrates to the contrary (see People v. Simmons, 110 AD3d 1371, 1372–1373;  People v. Davenport, 106 AD3d 1197, 1197–1198).   Further, where, as here, the defendant's “waiver of indictment satisfied all of the requirements of the New York Constitution and CPL article 195, the waiver of indictment was valid” (People v. Gramola, 102 AD3d 810, 810;  see People v. Hanely, 107 AD3d 917).

The defendant additionally claims that the People failed to file a special information pursuant to CPL 200.60, charging that he had previously been convicted of driving while intoxicated.   However, that nonjurisdictional procedural defect was forfeited by the defendant's plea of guilty (see People v. Brown, 113 AD3d 632;  People v. Baxter, 86 AD3d 648;  People v. Viano, 287 A.D.2d 584, 585).



Aprilanne Agostino

Clerk of the Court

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