People v. Batista

• Citation: 84 N.Y.S.3d 385 (Mem),165 A.D.3d 1158
• Decision Date: 24 October 2018
• Docket Number: S.C.I. No. 55/16,2017–04993
• Parties: The PEOPLE, etc., respondent, v. Jose E. BATISTA, appellant.
• Court: New York Supreme Court — Appellate Division

165 A.D.3d 1158
84 N.Y.S.3d 385 (Mem)

The PEOPLE, etc., respondent,
v.
Jose E. BATISTA, appellant.

2017–04993
S.C.I. No. 55/16

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

October 24, 2018
Submitted—May 22, 2018

Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant.

Madeline Singas, District Attorney, Mineola, N.Y. (Laurie K. Gibbons and Mary Faldich of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Meryl J. Berkowitz, J.), rendered March 25, 2016, convicting him of criminal possession of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was convicted of criminal possession of a controlled substance in the fifth degree, upon his plea of guilty. Prior to pleading guilty, the defendant waived his right to indictment and agreed to proceed by Superior Court Information. The defendant also waived his right to appeal.

84 N.Y.S.3d 386

We need not determine whether the defendant's purported waiver of the right to appeal was invalid (cf. People v. Ward, 140 A.D.3d 903, 904, 32 N.Y.S.3d 648 ; People v. Harvey, 137 A.D.3d 1162, 1163, 26 N.Y.S.3d 890 ), since the defendant's contentions would survive even a valid waiver of the right to appeal (see People v. Corr, 159 A.D.3d 918, 70 N.Y.S.3d 64 ; People v. Thompson, 150 A.D.3d 1156, 1157, 52 N.Y.S.3d 675 ; People v. Aquart, 149 A.D.3d 768, 49 N.Y.S.3d 632 ; People v. McLean, 77 A.D.3d 684, 908 N.Y.S.2d 352 ).

The defendant's challenge to the validity of his waiver of indictment was not forfeited by his plea of guilty (see People v. Boston, 75 N.Y.2d 585, 589, 555 N.Y.S.2d 27, 554 N.E.2d 64 ; People v. Janelle, 146 A.D.3d 808, 45 N.Y.S.3d 500 ; People v. Barnhill, 130 A.D.3d 839, 839, 12 N.Y.S.3d 553 ). Further, a challenge to the validity of a waiver of indictment...