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People v. Jordan

153 A.D.3d 1130 Court N.Y. App. Div. Decision date 2017-08-23 English

Judges Present — Smith, J.P., Centra, DeJoseph, NeMoyer and Scudder, JJ.

Contents

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p. 1130
The People of the State of New York, Respondent, v Kendel A. Jordan, Appellant.
[57 NYS3d 919]

Appeal from a judgment of the Ontario County Court (Frederick G. Reed, A.J.), rendered October 29, 2014. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree (two counts).

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

Memorandum: On appeal from a judgment convicting him upon a plea of guilty of two counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]), defendant contends in his pro se supplemental brief that the grand jury proceedings were impaired because the prosecutor presented inadmissible evidence. “It is well settled that ‘[a] guilty plea generally results in a forfeiture of the right to ap

p. 1131
pellate review of any nonjurisdictional defects in the proceedings’ ” (People v Granger, 96 AD3d 1669 , 1669 [2012], lv denied 19 NY3d 1102 [2012], quoting People v Fernandez, 67 NY2d 686 , 688 [1986]). Therefore, “[b]y pleading guilty, defendant forfeited his present contention that the grand jury proceedings were impaired, inasmuch as the alleged error did not render the accusatory instrument jurisdictionally defective” (People v Monacelli, 299 AD2d 916 , 916 [2002], lv denied 99 NY2d 617 [2003]; see generally People v Hansen, 95 NY2d 227 , 232 [2000]; People v Newkirk, 133 AD3d 1364 , 1365 [2015], lv denied 26 NY3d 1148 [2016]). The remaining contentions in defendant’s pro se supplemental brief are based on facts outside the record and thus must be raised by way of a motion pursuant to CPL 440.10 (see People v Miller, 68 AD3d 1135 , 1135 [2009], lv denied 14 NY3d 803 [2010]; see also People v Evans, 137 AD3d 1683 , 1683-1684 [2016], lv denied 27 NY3d 1131 [2016]).

Finally, contrary to defendant’s contention in his main brief, the sentence is not unduly harsh or severe.

Present — Smith, J.P., Centra, DeJoseph, NeMoyer and Scudder, JJ.

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