People v. Ferretti

• Decision Date: 27 October 2022
• Docket Number: 110932
• Parties: The PEOPLE of the State of New York, Respondent, v. Philip J. FERRETTI, Appellant.
• Court: New York Supreme Court — Appellate Division

209 A.D.3d 1173

177 N.Y.S.3d 379

The PEOPLE of the State of New York, Respondent,

v.Philip J. FERRETTI, Appellant.

110932

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

Calendar Date: September 9, 2022

Decided and Entered: October 27, 2022

Noreen McCarthy, Keene Valley, for appellant.

Jonathan J. Miller, District Attorney, Malone (Jennifer M. Hollis of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Clark and Ceresia, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeal from a judgment of the County Court of Franklin County (Derek P. Champagne, J.), rendered December 10, 2018, convicting defendant upon his plea of guilty of the crime of failure to report a change in Internet status.

In November 2017, defendant waived indictment and agreed to be prosecuted pursuant to a superior court information (hereinafter SCI) charging him with failing to report a change in Internet status in violation of Correction Law § 168–f (4). The resulting plea agreement, which required defendant to waive his right to appeal, contemplated that defendant would be put on interim probation for one year. If successful, defendant would receive a split sentence of six months in jail followed by five years of probation; if unsuccessful, defendant would be sentenced to an unspecified term of imprisonment. Defendant pleaded guilty in conformity with the agreement and was placed on interim probation, and sentencing was adjourned. Defendant's performance on interim probation was ultimately unsuccessful, and County Court (Champagne, J.) thereafter sentenced him to a prison term of 1 to 3 years. This appeal ensued.

Initially, we reject defendant's assertion that his waiver of the right to appeal is invalid. Defendant was apprised that an appeal waiver was a condition of the plea agreement, and County Court (Richards, J.) both explained that the right to appeal was separate and distinct from the trial-related rights that defendant was forfeiting by pleading guilty and delineated the appellate rights that would survive the appeal waiver (see People v. Dennis, 206 A.D.3d 1369, 1370, 168 N.Y.S.3d 905 [3d Dept. 2022] ; People v. Hall, 204 A.D.3d 1228, 1228, 165 N.Y.S.3d 381 [3d Dept. 2022] ). Additionally, defendant executed a written waiver in open court and confirmed that he had read the waiver, understood its contents and had no questions relative thereto (see People v. Hall, 204 A.D.3d at 1228, 165 N.Y.S.3d 381 ; People v. Lapoint, 201 A.D.3d 1258, 1258, 161 N.Y.S.3d 506 [3d Dept. 2022], lv denied 38 N.Y.3d 1008, 168 N.Y.S.3d 362, 188 N.E.3d 554 [2022] ). Finally, although the written waiver contained some overbroad language, both the oral colloquy and the written waiver itself made clear that some appellate review survived (see People v. Sims, 207 A.D.3d 882, 883, 172 N.Y.S.3d 195 [3d Dept. 2022] ). Accordingly, we are satisfied that defendant knowingly, intelligently and voluntarily waived his right to appeal. In light of the valid appeal waiver, any challenge to the factual sufficiency of defendant's plea allocution is precluded and, further, is unpreserved for our review in the absence of an appropriate postallocution motion (see id. at 883–884, 172 N.Y.S.3d 195 ; People v. Brown, 163 A.D.3d 1269, 1271, 82 N.Y.S.3d 218 [3d Dept. 2018] ).

Defendant's contention that the SCI is jurisdictionally defective "is not precluded by either his guilty plea or his waiver of the right to appeal[ ] and, further, is not subject to the preservation requirement" ( People v. Coss, 178 A.D.3d 25, 27, 111 N.Y.S.3d 137 [3d Dept. 2019] [internal quotation marks and citations omitted]; see People v. Mathis, 185 A.D.3d 1094, 1096, 126 N.Y.S.3d 795 [3d Dept. 2020] ).¹ An SCI "is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime – for instance, if it fails to allege that the defendant committed acts constituting every material element of the crime charged" ( People v. D'Angelo, 98 N.Y.2d 733, 734–735, 750 N.Y.S.2d 811, 780 N.E.2d 496 [2002] ; accord People v. Chaney, 160 A.D.3d 1281, 1283, 76 N.Y.S.3d 257 [3d Dept. 2018], lv denied 31 N.Y.3d 1146, 83 N.Y.S.3d 427, 108 N.E.3d 501 [2018] ). In this regard, "a charging instrument that incorporates by reference the statutory provisions applicable to the crime charged has been held to allege the material elements of the crime sufficiently to survive a jurisdictional challenge" ( People v. Brown, 163 A.D.3d at 1271, 82 N.Y.S.3d 218 [internal quotation marks, brackets and citation omitted]; see People v. Edwards, 180 A.D.3d 1111, 1111–1112, 117 N.Y.S.3d 775 [3d Dept. 2020], lv denied 35 N.Y.3d 969, 125 N.Y.S.3d 34, 148 N.E.3d 498 [2020] ; People v. Kamburelis, 100 A.D.3d 1189, 1189, 954 N.Y.S.2d 254 [3d Dept. 2012] ) – provided such reference is not negated "by the inclusion of conduct that does not constitute the crime charged" ( People v. Boula, 106 A.D.3d 1371, 1372, 966 N.Y.S.2d 259 [3d Dept. 2013], lv denied 21 N.Y.3d 1040, 972 N.Y.S.2d 538, 995 N.E.2d 854 [2013] ; see People v. Hurell–Harring, 66 A.D.3d 1126, 1128 n. 3, 887 N.Y.S.2d 317 [3d Dept. 2009] ).

The SCI issued here incorporated by reference the provisions of Correction Law § 168–f (4), which provides, in relevant part, that a sex offender is required to register with the Division of Criminal Justice Services (hereinafter DCJS) "no later than [10] calendar days after any change of address, [I]nternet accounts with [I]nternet access providers belonging to such offender [or][I]nternet identifiers that such offender uses." An Internet identifier, in turn, is defined as "electronic mail addresses and designations used for the purposes of chat, instant messaging, social networking or other similar [I]nternet communication" ( Correction Law § 168–a [18] ).

The felony complaint and supporting deposition allege that defendant created a Facebook account in January 2017 under the name Joseph James and thereafter utilized the messenger feature associated therewith to send harassing and threatening messages to his ex-girlfriend. "[T]he name one uses to interact with other users on Facebook – such as a screen name, pseudonym or alias – may be an Internet identifier that must be disclosed ... if it is a ‘designation used for the purposes of chat, instant messaging, social networking or other similar Internet communication’ " ( People v. Ellis, 33 N.Y.3d 582, 585, 106 N.Y.S.3d 291, 130 N.E.3d 887 [2019] [brackets omitted], quoting Correction Law § 168–a [18] ; accord People v. Weeks, 188 A.D.3d 1420, 1423, 136 N.Y.S.3d 485 [3d Dept. 2020], lv denied 36 N.Y.3d 1060, 141 N.Y.S.3d 752, 165 N.E.3d 678 [2021] ). Accordingly, the alias that defendant allegedly created and used to message his ex-girlfriend on Facebook would constitute an Internet identifier within the meaning of Correction Law § 168–a (18), and his corresponding failure to register such identifier with DCJS within 10 days would place him in violation of Correction Law § 168–f (4).

However, the SCI did not charge defendant with failing to register or report a change in an Internet identifier; instead, defendant was solely charged with failing to report a change in Internet status in violation of Correction Law § 168–f (4). Even assuming, without deciding, that the generalized language employed – failing to report a change in Internet status – coupled with the statutory reference otherwise would be sufficient to allege the material elements of the crime charged (see People v. Chaney, 160 A.D.3d at 1283, 76 N.Y.S.3d 257 ; People v. Dubois, 150 A.D.3d 1562, 1564, 55 N.Y.S.3d 513 [3d Dept. 2017] ), such reference was effectively negated "by the inclusion of conduct that [did] not constitute the crime charged" ( People v. Boula, 106 A.D.3d at 1372, 966 N.Y.S.2d 259 ; see People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 [...