People v Cane

People v Cane 2014 NY Slip Op 08879 Decided on December 18, 2014 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 18, 2014
105818

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

DERRICK CANE, Appellant.

Calendar Date: October 6, 2014
Before: Lahtinen, J.P., McCarthy, Egan Jr., Devine and Clark, JJ.

Rebecca L. Fox, Plattsburgh, for appellant.

Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), for respondent.

Egan Jr., J.

MEMORANDUM AND ORDER

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 1½ 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.

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 14 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 [*2]733, 735 [2002]).[FN1]

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.

Footnotes

Footnote 1: Although defendant unsuccessfully attempted — after 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]).