People v. Gannon
| Decision Date | 13 December 2018 |
| Docket Number | 109187 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Heidi GANNON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
167 A.D.3d 1163
88 N.Y.S.3d 720
The PEOPLE of the State of New York, Respondent,
v.
Heidi GANNON, Appellant.
109187
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: November 15, 2018
Decided and Entered: December 13, 2018
Brian M. Quinn, Albany, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Lynch, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Egan Jr., J.
Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.), rendered October 3, 2016, convicting defendant upon her plea of guilty of the crimes of criminal sexual act in the first degree and sexual abuse in the first degree.
After police discovered that defendant had assisted her husband in having inappropriate sexual contact with her two minor daughters over the course of many years, felony complaints were filed alleging that defendant had committed various crimes. Four of the felony complaints involved criminal conduct that occurred during March 2014 and alleged that defendant had committed the crimes of sexual abuse in the first degree (two counts), criminal sexual act in the first degree (two counts) and attempted rape in the first degree. Two other felony complaints involved criminal conduct that occurred between 2009 and 2015 and alleged that defendant had committed the crime of endangering the welfare of a child (two counts). Defendant subsequently waived indictment and agreed to be prosecuted by a superior court information (hereinafter SCI) charging her with the crimes of criminal sexual act in the first degree under Penal Law § 130.50(4) and sexual abuse in the first degree under Penal Law § 130.65(4) based upon criminal conduct that occurred in September and October 2009. She pleaded guilty to both crimes in satisfaction thereof and waived her right to appeal, both orally and in writing. In accordance with the terms of the plea agreement, she was given concurrent sentences of 10 years in prison followed by 20 years of postrelease supervision on the criminal sexual act conviction, and seven years in prison followed by 10 years of postrelease supervision on the sexual abuse conviction. She now appeals.
Initially, defendant contends that the waiver of indictment and the SCI are jurisdictionally defective with respect to the crime of sexual abuse in the first degree under Penal Law § 130.65(4) because this provision of the Penal Law was not in effect in 2009 when the alleged criminal conduct occurred. Preliminarily, we note that defendant is not precluded by her unchallenged waiver of the right to appeal from raising this jurisdictional challenge (see People v. Bethea , 61 A.D.3d 1016, 1017, 874 N.Y.S.2d 920 [2009] ; see also
People v. Casey , 66 A.D.3d 1128, 1129, 887 N.Y.S.2d 714 [2009] ). The People concede that a jurisdictional defect exists inasmuch as the relevant Penal Law provision did not become effective until November 1, 2011 (see Penal Law § 130.65[4], as added by L 2011, ch 26, § 1), and a defendant may not be charged with a...
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People v. Gannon
...act in the first degree and sexual abuse in the first degree was the subject of a separate appeal before this Court (People v. Gannon, 167 A.D.3d 1163, 88 N.Y.S.3d 720 [2018] ...
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People v. Prince
...the voluntariness of his plea (see People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Gannon , 167 A.D.3d 1163, 1165, 88 N.Y.S.3d 720 [2018] ; People v. Letohic , 166 A.D.3d 1223, 1223, 85 N.Y.S.3d 799 [2018], lv denied 32 N.Y.3d 1174, ––– N.Y.S.3d ––––,......
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People v. Weeks
...of the SCI is nonjurisdictional and, as such, was foreclosed by his guilty plea, and is also unpreserved (see People v. Gannon, 167 A.D.3d 1163, 1164, 88 N.Y.S.3d 720 [2018] ; People v. Dubois, 150 A.D.3d 1562, 1564, 55 N.Y.S.3d 513 [2017] ; see also CPL 200.15, 200.50[7] ). Further, the SC......
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People v. Williams
...Such a challenge is precluded by defendant's valid waiver of his right to appeal, as well as his guilty plea (see People v. Gannon, 167 A.D.3d 1163, 1164, 88 N.Y.S.3d 720 [2018] ; People v. Dubois, 150 A.D.3d 1562, 1564, 55 N.Y.S.3d 513 [2017] ; People v. Young, 100 A.D.3d 1186, 1188, 954 N......