People v Constable (Ricky)

[*1] People v Constable (Ricky) 2021 NY Slip Op 50123(U) Decided on February 19, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 19, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2016-1357 K CR

The People of the State of New York, Respondent,

against

Ricky Constable, Appellant.

Feldman and Feldman (Steven A. Feldman of counsel), for appellant. Kings County District Attorney (Leonard Joblove, Joyce Slevin and Arieh Schulman of counsel), for respondent.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Alexander Calabrese, J.), rendered January 22, 2016. The judgment convicted defendant, upon his plea of guilty, of petit larceny, and imposed sentence.

ORDERED that the judgment of conviction is affirmed.

Defendant pleaded guilty to petit larceny (Penal Law § 155.25) in satisfaction of an accusatory instrument which had also charged him with criminal possession of stolen property in the fifth degree (Penal Law § 165.40). On appeal, assigned counsel submitted an Anders brief (see Anders v California, 386 US 738 [1967]). Upon an independent review of the record, which revealed that nonfrivolous issues existed, this court held the appeal in abeyance, granted the application by assigned counsel for leave to withdraw as counsel, and assigned new counsel to prosecute the appeal (see 64 Misc 3d 145[A], 2019 NY Slip Op 51305[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). New counsel has submitted a brief contending that the accusatory instrument was facially insufficient, that the Criminal Court failed to satisfy its duty under People v Peque (22 NY3d 168 [2013]), and that defendant received the ineffective assistance of counsel.

"A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" (People v Case, 42 NY2d 98, 99 [1977]; see also People v Dumay, 23 NY3d 518, 522 [2014]; People v Dreyden, 15 NY3d 100, 103 [2010]). Thus, the facial insufficiency of an accusatory instrument constitutes a jurisdictional defect which is not forfeited by a defendant's guilty plea (see Dreyden, 15 NY3d at 103; People v Konieczny, 2 NY3d 569, 573 [2004]). Moreover, where a defendant has pleaded guilty to one or more of the counts actually charged in a multi-count accusatory instrument, and, on appeal, raises a jurisdictional challenge, the defendant need not challenge the facial sufficiency of all of the counts contained in the accusatory instrument at the time the defendant entered the guilty plea; rather, he or she need only challenge the facial sufficiency of the actual count(s) to which he or she pleaded guilty (see People v Mason, 62 Misc 3d 75 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Here, since defendant did not waive the right to be prosecuted by information, the relevant count of the accusatory instrument must be evaluated under the standards that govern the sufficiency of an [*2]information (see People v Hatton, 26 NY3d 364, 368 [2015]; People v Kalin, 12 NY3d 225, 228 [2009]; see also CPL 100.15, 100.40 [1]).

Pursuant to Penal Law § 155.25, "[a] person is guilty of petit larceny when he steals property," and, pursuant to Penal Law § 155.05 (1), "[a] person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof." A person wrongfully takes property when he or she does so without an owner's consent, and exercises dominion and control over that property for a period of time, however temporary, in a manner wholly inconsistent with the owner's rights (see People v Olivo, 52 NY2d 309, 318-319 [1981]). Concealing merchandise in one's clothing or in a bag while attempting to leave a store are among the manifold factors that may be considered in determining whether a defendant is guilty of larceny in the context of shoplifting, as such factual allegations support both the taking element of petit larceny as well as the larcenous intent element (see id. at 318-319). Thus, to be facially sufficient, an accusatory instrument need not necessarily allege that a shoplifter actually left the store (see People v Teboul, 60 Misc 3d 141[A], 2018 NY Slip Op 51305[U] [App Term, 1st Dept 2018]; People v Kryzhapolsky, 59 Misc 3d 126[A], 2018 NY Slip Op 50345[U] [App Term, 1st Dept 2018]; see generally Olivo, 52 NY2d at 318). Here, the accusatory instrument, together with the accompanying supporting deposition, alleged that the manager of the store observed defendant place two steaks, one package of hot dogs, and a can of soup inside his bag and attempt to leave the store while in possession of that property without paying for it. Consequently, these factual allegations, if true, establish every element of petit larceny (see CPL 100.40 [1] [c]) and provide reasonable cause to believe that defendant committed that offense (see CPL 100.40 [1] [b]). Thus, the count contained in the accusatory instrument charging defendant with petit larceny, to which he pleaded guilty, was facially sufficient.

With regard to defendant's Peque claim, the record demonstrates that defendant was sentenced three months after his plea proceeding. Yet, during this three-month period, despite having a reasonable opportunity to do so, defendant failed to move to withdraw his guilty plea or otherwise raise this claim before the trial court (see People v Delorbe, 35 NY3d 112 [2020]; People v Williams, 27 NY3d 212, 223 n 2 [2016] ["we have never held, either in the plea context or elsewhere, that the defendant's lack of actual knowledge that an error has occurred, despite an opportunity to learn of the error, may excuse the defendant from having to preserve his or her claim via objection"]). Consequently, since defendant also failed to move to vacate the judgment of conviction pursuant to CPL 440.10, his Peque claim is not preserved for appellate review and none of the narrow exceptions to the preservation rule apply here (see Delorbe, 35 NY3d at 115, 120-121; Peque, 22 NY3d at 182). Furthermore, we decline to review defendant's Peque claim as a matter of discretion in the interest of justice.

Where a defendant's ineffective assistance of counsel claim is predicated on his or her failure to be advised of the deportation consequences of a guilty plea (see Padilla v Kentucky, 559 US 356 [2010]), which failure does not appear on the face of the record, the defendant must raise the claim via a CPL 440.10 motion (see Peque, 22 NY3d at 202; People v Haffiz, 19 NY3d 883, 885 [2012]; People v McLean, 15 NY3d 117, 121 [2010]; People v Love, 57 NY2d 998, 1000 [1982]). Here, based upon the existing record before us, we find that defendant failed to meet his burden of demonstrating that he had received the ineffective assistance of counsel (see Peque, 22 NY3d at 202; People v Owusu, 60 Misc 3d 130[A], 2018 NY Slip Op 50989[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). Indeed, the record indicates that, during the plea allocution, the court asked defense counsel whether she had discussed with defendant how the guilty plea "may affect his employment, immigration, or housing," and defense counsel responded in the affirmative. Without the benefit of additional facts that might have been developed after an appropriate motion, this court cannot conclude that counsel failed to give the requisite immigration advice in accordance with Padilla or that her representation was otherwise [*3]ineffective under the federal and state standards (see US Const, 6th Amend; NY Const, art I, § 6; Hill v Lockhart, 474 US 52, 59 [1985]; Strickland v Washington, 466 US 668, 687 [1984]; People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137 [1981]).

Accordingly, the judgment of conviction is affirmed.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 19, 2021