People v. Ashby

200 A.D.3d 1723

158 N.Y.S.3d 515

The PEOPLE of the State of New York, Respondent,

v.Kevin A. ASHBY, Defendant-Appellant.

1055

KA 16-00797

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

Entered: December 23, 2021

ANTHONY F. BRIGANO, UTICA, FOR DEFENDANT-APPELLANT.

BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

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

Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia, insurance fraud in the third degree ( Penal Law § 176.20 ), defendant contends that the indictment is jurisdictionally defective. We reject that contention. The failure of the first count of the indictment to recite all the elements of the crime in full "did not constitute a jurisdictional defect because that count specifically referred to the applicable section of the Penal Law" ( People v. Shanley , 15 A.D.3d 921, 922, 788 N.Y.S.2d 781 [4th Dept. 2005], lv denied 4 N.Y.3d 856, 797 N.Y.S.2d 430, 830 N.E.2d 329 [2005] ; see People v. Taylor , 158 A.D.3d 1095, 1097, 72 N.Y.S.3d 256 [4th Dept. 2018], lv denied 32 N.Y.3d 941, 84 N.Y.S.3d 868, 109 N.E.3d 1168 [2018], reconsideration denied 32 N.Y.3d 1178, 97 N.Y.S.3d 616, 121 N.E.3d 243 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 482, 205 L.Ed.2d 269 [2019] ; cf. People v. Mathis , 185 A.D.3d 1094, 1095, 126 N.Y.S.3d 795 [3d Dept. 2020] ).

Although defendant further contends that each count of the indictment is legally insufficient because the counts do not set forth sufficient factual allegations, he failed to preserve his contention for our review (see People v. Raad , 166 A.D.3d 907, 908, 85 N.Y.S.3d 873 [2d Dept. 2018], lv denied 33 N.Y.3d 952, 100 N.Y.S.3d 160, 123 N.E.3d 819 [2019] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).

Defendant also contends that count one of the indictment was impermissibly amended (see generally CPL 200.70 ). Contrary to defendant's contention, we conclude that he was required to preserve that contention for our review (see People ex rel. Prince v. Brophy , 273 N.Y. 90, 99, 6 N.E.2d 109 [1937] ; Mathis , 185 A.D.3d at 1097, 126 N.Y.S.3d 795 ; People v. Peals , 143 A.D.3d 535, 535, 38 N.Y.S.3d 803 [1st Dept. 2016], lv denied 28 N.Y.3d 1149, 52 N.Y.S.3d 300, 74 N.E.3d 685 [2017] ; cf. People v. Ercole , 308 N.Y. 425, 434, 126 N.E.2d 543 [1955] ; People v. Placido , 149 A.D.3d 1157, 1158, 51 N.Y.S.3d 226 [3d Dept. 2017] ). Although past cases of this Court have not required preservation of such a contention (see e.g. People v. Vickers , 148 A.D.3d 1535, 1537, 50 N.Y.S.3d 668 [4th Dept. 2017], lv denied 29 N.Y.3d 1088, 64 N.Y.S.3d 178, 86 N.E.3d 265 [2017] ; People v. Powell , 153 A.D.2d 54, 58, 549 N.Y.S.2d 276 [4th Dept. 1989], lv denied 75 N.Y.2d 969, 556 N.Y.S.2d 254, 555 N.E.2d 626 [1990] ), they are no longer to be followed (cf. People v. Hursh , 191 A.D.3d 1453, 1454, 138 N.Y.S.3d 437 [4th Dept. 2021], lv denied 37 N.Y.3d 957, 147 N.Y.S.3d 500, 170 N.E.3d 374 [2021] ; see generally People v. Allen , 24 N.Y.3d 441, 449-450, 999 N.Y.S.2d 350, 24 N.E.3d 586 [2014] ). Here, defendant failed to preserve his contention for our review (see Prince , 273 N.Y. at 99, 6 N.E.2d 109 ; Mathis , 185 A.D.3d at 1097, 126 N.Y.S.3d 795 ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).