People v. Feltz

190 A.D.3d 1026

139 N.Y.S.3d 699

The PEOPLE of the State of New York, Respondent,

v.Ryan FELTZ, Appellant.

110599

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

Calendar Date: November 23, 2020

Decided and Entered: January 7, 2021

Erin C. Morigerato, Albany, for appellant.

Joseph Stanzione, District Attorney, Catskill (Denise J. Kerrigan of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Mulvey and Colangelo, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.

Appeal from a judgment of the County Court of Greene County (Young, J.), rendered July 16, 2018, convicting defendant upon his plea of guilty of the crime of criminal possession of a firearm.

After numerous loaded handguns were found secreted on property from which defendant had been evicted, defendant, who was on probation, was charged with five counts of criminal possession of a weapon in the third degree, as well as a violation of probation. Thereafter, defendant waived indictment and pleaded guilty to criminal possession of a firearm as charged in a superior court information and also admitted to violating the terms of his probation. At sentencing, defendant submitted a pro se motion seeking an adjournment to replace defense counsel, claiming that defense counsel was ineffective. County Court denied the motion for an adjournment and sentenced defendant, a second felony offender, in accordance with the terms of the plea agreement to 1 ½ to 3 years in prison, to run concurrently with the resentence imposed in connection with the probation violation. Defendant appeals.

Initially, defendant contends that the waiver of indictment is invalid and the superior court information is jurisdictionally defective for failure to set forth the approximate time of the offense in compliance with CPL 195.20. However, the omission of such nonelemental information, to which defendant did not object, amounts to a technical – not a jurisdictional – defect and, therefore, his challenge was forfeited by his guilty plea (see People v. Lang, 34 N.Y.3d 545, 568–569, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; People v. Edwards, 181 A.D.3d 1054, 1055, 122 N.Y.S.3d 133 [2020], lvs denied 35 N.Y.3d 1026, 1029, 126 N.Y.S.3d 33, 34, 149 N.E.3d 871, 872 [2020] ). Notably, defendant makes no claim that he lacked notice of the specific crime for which he waived prosecution by indictment, and the time of the crime is specifically set forth in the felony complaint (see People v. Lang, 34 N.Y.3d at 569–570, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Cruz, 186 A.D.3d 932, 933, 128 N.Y.S.3d 367 [2020], lv denied 35 N.Y.3d 1112, 133 N.Y.S.3d 518, 158 N.E.3d 535 [2020] ; People v. Edwards, 181 A.D.3d at 1055, 122 N.Y.S.3d 133 ).

The record also reflects that defendant's waiver of his right to appeal was knowing, voluntary and intelligent. The record establishes that defendant's appeal waiver was made a condition of his plea agreement, County Court explained that his right to appeal was separate and distinct from the trial-related rights that he was forfeiting as part of his guilty plea and defendant affirmed that he had no questions for his attorney in this regard and that he understood the ramifications thereof. Accordingly, we find that defendant validly waived his right to appeal his conviction and sentence, thereby precluding his challenge to the severity of the agreed-upon sentence (see People v. Carl, 188 A.D.3d 1304, 1306, 133 N.Y.S.3d 346, 350 [2020] ; People v. Brunson, 185 A.D.3d 1300, 1300, 128 N.Y.S.3d 338 [2020], lv denied 36 N.Y.3d 928, 135 N.Y.S.3d 345, 159 N.E.3d 1112 [2020] ; People v. Weidenheimer, 181 A.D.3d 1096, 1097, 122 N.Y.S.3d 149 [2020] ).

Defendant's challenge to the voluntariness of the plea is unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion (see People v. Brito, 184 A.D.3d 900, 901, 124 N.Y.S.3d 749 [2020] ; People v. Vilbrin, 183 A.D.3d 1012, 1013, 123 N.Y.S.3d 297 [2020], lv denied 35 N.Y.3d 1049, 127 N.Y.S.3d 861, 151 N.E.3d 543 [2020] )....