People v. Giddens

172 A.D.3d 1402

98 N.Y.S.3d 906 (Mem)

The PEOPLE, etc., Respondent,

v.Ralph GIDDENS, Appellant.

2017–06373

S.C.I. No. 15-595

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

Argued - January 29, 2019

May 29, 2019

Calhoun & Lawrence, LLP, White Plains, N.Y. (Clinton W. Calhoun III of counsel), for appellant.

Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (John J. Carmody and William C. Milaccio of counsel), for respondent.

MARK C. DILLON, J.P., HECTOR D. LASALLE, BETSY BARROS, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (Rolf M. Thorsen, J., at plea; Larry J. Schwartz, J., at sentence), rendered March 29, 2017, convicting him of grand larceny in the second degree and criminal tax fraud in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's challenge to the validity of his waiver of indictment is not forfeited by his plea of guilty and does not need to be preserved for appellate review (see People v. Boston, 75 N.Y.2d 585, 589, 555 N.Y.S.2d 27, 554 N.E.2d 64 ; People v. Anderson, 149 A.D.3d 766, 766–767, 50 N.Y.S.3d 552 ; People v. Libby, 246 A.D.2d 669, 670, 668 N.Y.S.2d 397 ). However, the defendant's contention that his waiver of indictment was invalid is without merit. Contrary to the defendant's contention, his written waiver of indictment satisfied all of the requirements of the New York Constitution and CPL article 195 (see People v. Surico, 138 A.D.3d 899, 899, 28 N.Y.S.3d 330 ; People v. Lawless, 133 A.D.3d 884, 884, 19 N.Y.S.3d 429 ; People v. Gramola, 102 A.D.3d 810, 810, 957 N.Y.S.2d 893 ). Additionally, during the plea allocution, the defendant acknowledged that he understood the waiver (see People v. Hickson, 165 A.D.3d 1166, 1167, 85 N.Y.S.3d 546 ).

The defendant's contention that his plea of guilty was involuntary, unknowing, and not intelligently entered is unpreserved for appellate review, since he failed to move to withdraw the plea before sentencing (see People v. Bridgers, 159 A.D.3d 715, 715, 69 N.Y.S.3d 497 ; People v. Woods, 138 A.D.3d 1153, 1154, 28 N.Y.S.3d 905 ; People v. Newson, 106 A.D.3d 839, 840, 964 N.Y.S.2d 646 ). In any event, the plea was voluntarily, knowingly, and intelligently entered (see People v. Pellegrino, 26 N.Y.3d 1063, 1063, 23 N.Y.S.3d 145, 44 N.E.3d 220 ; People v. Conceicao, 26 N.Y.3d 375, 382–383, 23 N.Y.S.3d 124, 44 N.E.3d 199 ; People v. Tyrell, 22 N.Y.3d 359, 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 ).

DILLON, J.P., LASALLE, BARROS and CHRISTOPHER, JJ., concur.