People v Jordan

People v Jordan 2017 NY Slip Op 06326 Decided on August 23, 2017 Appellate Division, Fourth 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 on August 23, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., CENTRA, DEJOSEPH, NEMOYER, AND SCUDDER, JJ.
924 KA 15-00062

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

v

KENDEL A. JORDAN, DEFENDANT-APPELLANT.

LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (CARA A. WALDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.

KENDEL A. JORDAN, DEFENDANT-APPELLANT PRO SE.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR RESPONDENT.

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 appellate review of any nonjurisdictional defects in the proceedings' " (People v Granger, 96 AD3d 1669, 1669, lv denied 19 NY3d 1102, quoting People v Fernandez, 67 NY2d 686, 688). 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, lv denied 99 NY2d 617; see generally People v Hansen, 95 NY2d 227, 232; People v Newkirk, 133 AD3d 1364, 1365, lv denied 26 NY3d 1148). 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, lv denied 14 NY3d 803; see also People v Evans, 137 AD3d 1683, 1683-1684, lv denied 27 NY3d 1131).

Finally, contrary to defendant's contention in his main brief,

the sentence is not unduly harsh or severe.

Entered: August 23, 2017

Frances E. Cafarell

Clerk of the Court