People v. Chappelle

• Decision Date: 07 May 1998
• Citation: 673 N.Y.S.2d 751,250 A.D.2d 878
• Parties: , 1998 N.Y. Slip Op. 4399 The PEOPLE of the State of New York, Respondent, v. Shawn CHAPPELLE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 751

673 N.Y.S.2d 751

250 A.D.2d 878, 1998 N.Y. Slip Op. 4399

The PEOPLE of the State of New York, Respondent, v. Shawn CHAPPELLE, Appellant.

Supreme Court, Appellate Division Third Department.

May 7, 1998.

John P. Amodeo, Albany, for appellant.

Robert M. Winn, District Attorney (Katherine G. Henley, of counsel), Fort Edward, for respondent.

Before CARDONA, P.J., and YESAWICH, PETERS, SPAIN and CARPINELLO, JJ.

PETERS, Justice.

Appeal from a judgment of the County Court of Washington County (Hemmett Jr., J.), rendered June 18, 1996, convicting defendant upon his plea of guilty of the crime of assault in the second degree.

While incarcerated at Great Meadow Correctional Facility in Washington County, defendant had a physical altercation with a correction officer which resulted in the officer's injury. Thereafter, indicted on two counts of assault in the second degree, defendant moved to dismiss the indictment upon the ground that the People failed to honor his written request to appear before the Grand Jury (see, CPL 190.50[5][c] ). After County Court denied the motion as untimely, defendant pleaded guilty to the second count of the indictment in satisfaction of both counts. In keeping with the People's recommendation as part of the negotiated plea and upon finding that defendant was a second violent felony offender, he was sentenced to a term of imprisonment of 2 1/2 to 5 years, consecutive with the term he was then serving.

Upon appeal, defendant contends that the indictment should be dismissed because of the People's failure to honor his written request to appear before the Grand Jury. This issue need not detain us since the right to appellate review thereof was waived by his plea (see, People v. Empey, 242 A.D.2d 839, 662 N.Y.S.2d 152, lv. denied 91 N.Y.2d 834, 667 N.Y.S.2d 687, 690 N.E.2d 496; People v. Dennis, 223 A.D.2d 814, 815, 636 N.Y.S.2d 453, lv. denied 87 N.Y.2d 972, 642 N.Y.S.2d 201, 664 N.E.2d 1264). Were we to consider it, we would find it unavailing.

While the plea did not preclude defendant from challenging count two of the indictment as jurisdictionally defective based upon a failure to specifically allege that "physical injury" was caused to the victim as required by Penal Law § 120.05(3) (see, People v. Quamina, 207 A.D.2d 1030, 617 N.Y.S.2d 95, lv. denied 84 N.Y.2d 1014, 622 N.Y.S.2d 926, 647 N.E.2d 132; see also, People v. Roe, 191 A.D.2d 844, 845, 595 N.Y.S.2d 121), such challenge is similarly without merit. In view of the fact that the indictment included a specific reference to Penal Law § 120.05(3), the omission is not a jurisdictional defect since "incorporation by * * * reference to the statute operates without more to constitute allegations of all the elements of the crime required by explicit provision of the statute itself" (People v. Cohen, 52 N.Y.2d 584, 586, 439 N.Y.S.2d 321, 421 N.E.2d 813; see, People v. Diaz, 233 A.D.2d 777, 650 N.Y.S.2d 436).

Concerning the sufficiency of the plea allocution, again we find the issue unpreserved for review due to a failure to either move to withdraw the plea or vacate the judgment of conviction (see, People v. Stockwell, 243 A.D.2d 992, 663 N.Y.S.2d 685). Were it properly preserved, we would find that the allocution sufficiently established all the elements of the crime (see, People v. Nestman, 239 A.D.2d 701, 658 N.Y.S.2d 145, lv. denied 90 N.Y.2d 908, 663 N.Y.S.2d 520, 686 N.E.2d 232).

As to defendant's contention that he was not given an opportunity to contest his status as a second felony offender, we...