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People v. Cane

123 A.D.3d 1301 Court N.Y. App. Div. Decision date 2014-12-18 English

Judges Lahtinen, J.P., McCarthy, Devine and Clark, JJ., concur.

Delivered by Egan Jr., J.

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p. 1301
The People of the State of New York, Respondent, v Derrick Cane, Appellant.
[996 NYS2d 797]

Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered April 8, 2013, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

In full satisfaction of a six-count indictment, defendant pleaded guilty to the reduced charge of attempted promoting prison contraband in the first degree and waived his right to appeal. Defendant thereafter was sentenced as a second felony offender to the agreed-upon prison term of IV2 to 3 years — said sentence to run consecutively to the prison term he then was serving. Defendant now appeals, contending that the underlying indictment was jurisdictionally defective.

p. 1302
We affirm. To be sure, defendant’s claim that the indictment at issue is jurisdictionally defective survives both his guilty plea and his waiver of the right to appeal (see People v Mydosh, 117 AD3d 1195 , 1196 [2014], lv denied 24 NY3d 963 [2014]; People v Griswold, 95 AD3d 1454 , 1454 [2012], lv denied 19 NY3d 997 [2012]). That said, “[w]here an indictment count incorporates by reference the statutory provision applicable to the crime intended to be charged, it has been repeatedly held that this is sufficient to apprise the defendant of the charge and, therefore, renders the count jurisdictionally valid” (People v Moon, 119 AD3d 1293 , 1294 [2014], lv denied 24 NY3d 1004 [2014] [internal quotation marks and citations omitted]; accord People v Burch, 97 AD3d 987 , 988 [2012], lv denied 19 NY3d 1101 [2012]; People v Griswold, 95 AD3d at 1455 ; People v Brown, 75 AD3d 655 , 656 [2010]; see People v D’Angelo, 98 NY2d 733 , 735 [2002]).[1]

Here, defendant pleaded guilty under count 1 of the indictment to the reduced charge of attempting promoting prison contraband in the first degree (see Penal Law §§ 110.00, 205.25 [1]). While it is true that count 1 of the indictment did not allege that defendant “knowingly and unlawfully” introduced dangerous contraband into the correctional facility where he was incarcerated, said count did expressly incorporate by reference the provisions of Penal Law § 205.25 (1), thereby rendering such count jurisdictionally valid (see People v D'Angelo, 98 NY2d at 735 ; People v Moon, 119 AD3d at 1294 ; People v Burch, 97 AD3d at 988-989 ; People v Brown, 75 AD3d at 656 ). Finally, even assuming, among other things, that a jurisdictional impediment exists as to count 2 of the indictment, any defect in this regard would result only in the dismissal of that particular count and would not compel dismissal of the entire indictment (see e.g. People v Garcia, 79 AD3d 1248 , 1249 [2010], lv denied 16 NY3d 797 [2011]; People v Pike, 63 AD3d 1692 , 1693 [2009], lv denied 13 NY3d 838 [2009]; People v Bethea, 61 AD3d 1016 , 1017 [2009]). Accordingly, we discern no basis upon which to disturb defendant’s plea of guilty to the reduced charge of attempted promoting prison contraband in the first degree under count 1 of the indictment.

Lahtinen, J.P., McCarthy, Devine and Clark, JJ., concur.

Ordered that the judgment is affirmed.

* Although defendant unsuccessfully attempted — sifter he entered his guilty plea but prior to sentencing — to file a pro se motion to dismiss the indictment upon this ground, a jurisdictional challenge of this nature may be raised for the first time upon appeal (see People v Slingerland, 101 AD3d 1265 , 1266 [2012], lv denied 20 NY3d 1104 [2013]).

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