People v. George

• Decision Date: 13 May 1999
• Citation: 694 N.Y.S.2d 478,261 A.D.2d 711
• Parties: The PEOPLE of the State of New York, Respondent, v. Shawn P.A. GEORGE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 478

694 N.Y.S.2d 478

The PEOPLE of the State of New York, Respondent, v. Shawn P.A. GEORGE, Appellant.

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

May 13, 1999.

Pasquale La Pietra, Latham, for appellant.

Robert T. Jewett, District Attorney (David Hartnett of counsel), Cortland, for respondent.

Before: CARDONA, P.J., MERCURE, PETERS, SPAIN and CARPINELLO, JJ.

SPAIN, J.

Appeal from a judgment of the County Court of Cortland County (Avery Jr., J.), rendered March 31, 1998, convicting defendant upon his plea of guilty of the crimes of scheme to defraud in the first degree and grand larceny in the fourth degree.

As part of a negotiated plea agreement, defendant entered a plea of guilty to the crime of scheme to defraud in the first degree, having previously waived indictment and consented to being prosecuted by superior court information (hereinafter SCI). At the plea proceedings, defendant admitted to writing a series of checks to a number of specified businesses over a two-month period knowing there were insufficient funds in his checking account to cover such checks and with intent to defraud the payees. Defendant concomitantly, and as part of the same agreement, pleaded guilty to grand larceny in the fourth degree, contained in a separate SCI, in satisfaction of all pending charges stemming from two other incidents. During the plea allocution, County Court conducted an extensive inquiry and informed defendant in detail of his rights and the consequences of a plea. As part of the negotiated plea bargain and as agreed upon at the plea proceedings, defendant waived at sentencing his right to appeal the conviction and sentence but reserved his right to appeal "the length of the sentence". County Court sentenced defendant, as promised, as a second felony offender to consecutive prison terms of 2 to 4 years on each count and ordered restitution on the scheme to defraud count. Defendant now appeals only from the judgment of conviction upon his guilty plea to scheme to defraud in the first degree.

We affirm. By entering a plea of guilty, defendant forfeited the right to contest the underlying conviction and his right to raise many otherwise reviewable issues on appeal (see, People v. Seaberg, 74 N.Y.2d 1, 8, 543 N.Y.S.2d 968, 541 N.E.2d 1022; People v. Taylor, 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755). Further, a waiver of the right to appeal a conviction and sentence, entered as part of a negotiated plea bargain, is generally enforceable and, indeed, defendant does not contend that either his plea or waiver of appeal rights were involuntarily or unknowingly entered (see, People v. Seaberg, supra, at 10-11, 543 N.Y.S.2d 968, 541 N.E.2d 1022). Were we to review the facts and circumstances surrounding the guilty plea and waiver in question, we would conclude that their terms and conditions were extensively explained to and comprehended and accepted by defendant, who participated in the colloquy on the record; indeed, defendant entered his plea and waived his right to appeal knowingly, intelligently and voluntarily and as an integral part of the plea agreement (see, id., at 12, 543 N.Y.S.2d 968, 541 N.E.2d 1022; see also, People v. Moissett, 76 N.Y.2d 909, 911-912, 563 N.Y.S.2d 43, 564 N.E.2d 653; People v. Ubrich, 245 A.D.2d 886, 887, 666 N.Y.S.2d 825, lv. denied 91 N.Y.2d 945, 671 N.Y.S.2d 725, 694 N.E.2d 894; People v. Shea, 254 A.D.2d 512, 512-513, 679 N.Y.S.2d 428, 428-429; People v. Wilmer, 191 A.D.2d 850, 595 N.Y.S.2d 123, lv. denied 81 N.Y.2d 1022, 600 N.Y.S.2d 210, 616 N.E.2d 867). Importantly, defendant never moved to withdraw or vacate his guilty plea; thus, any challenge to the sufficiency of the plea allocution is not preserved, and the limited circumstances that would allow such an unpreserved challenge are not present here (see, People v. Ubrich, supra, at 887, 666 N.Y.S.2d 825; see also, People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160; People v. Lopez, 71 N.Y.2d 662, 665-666, 529 N.Y.S.2d 465, 525 N.E.2d 5).

Defendant contends that the accusatory instrument charging him with scheme to defraud in the first degree did not sufficiently specify the dates, times or locations of the criminal acts alleged. While jurisdictional defects in an accusatory instrument are not forfeited by guilty pleas or, presumably, by waivers of appeal rights ¹ (see, People v. Case, 42 N.Y.2d 98, 99-100, 396 N.Y.S.2d 841, 365 N.E.2d 872; see also, People v. Seaberg, supra, at 8-9, 543 N.Y.S.2d 968, 541 N.E.2d 1022; People v. Taylor, 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755, supra; People v. Gerber, 182 A.D.2d 252, 261, 589 N.Y.S.2d 171, lv. denied 80 N.Y.2d 1026, 592 N.Y.S.2d 676, 607 N.E.2d 823), challenges to nonjurisdictional defects are waived (see, People v. Beattie, 80 N.Y.2d 840, 842, 587 N.Y.S.2d 585, 600 N.E.2d 216; People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656; People v. Gerber, supra, at 266, 589 N.Y.S.2d 171). As such, it has long been recognized that a challenge to the sufficiency of the factual allegations or details in a jurisdictionally sufficient accusatory instrument is a nonjurisdictional defect, forfeited upon a valid guilty plea and waived unless there is a timely objection (see, People v. Iannone, supra, at 600-601, 412 N.Y.S.2d 110, 384 N.E.2d 656; People v. Gerber, supra, at 261, 266, 589 N.Y.S.2d 171; People v. Pollay, 145 A.D.2d 972, 538 N.Y.S.2d 714). To the extent defendant challenges the factual specificity of the accusatory instrument, such claim was forfeited and waived by his guilty plea and his waiver of appeal.

Defendant's second contention is, as best as this court is able to discern, that the accusatory instrument does not allege conduct constituting every element of the crime of scheme to defraud in the first degree. Notably, a claim that the indictment accuses defendant of performing acts that do not constitute a crime (see, People v. Case, 42 N.Y.2d 98, 100, 396 N.Y.S.2d 841, 365 N.E.2d 872, supra ) or that the accusatory instrument fails to allege that defendant committed acts constituting every material element of the crime charged (see, People v. Iannone, supra, at 600, 412 N.Y.S.2d 110, 384 N.E.2d 656; People v. McGuire, 5 N.Y.2d 523, 186 N.Y.S.2d 250, 158 N.E.2d 830), are fundamental jurisdictional claims which defendant did not forfeit by his guilty plea or, presumably, by his waiver of appeal rights, even in the absence of a timely objection.

Here, the challenged SCI specifically and correctly alleges each and every element of the crime of scheme to defraud in the first degree. Further, it recites the precise statutory provision violated, i.e. Penal Law § 190.65(1)(a), and such incorporation by statutory reference, standing alone, constitutes a sufficient allegation of all of the elements of this crime (see, People v. Cohen, 52 N.Y.2d 584, 586, 439 N.Y.S.2d 321, 421 N.E.2d 813; People v. Iannone, supra, at 598-599, 412 N.Y.S.2d 110, 384 N.E.2d 656; People v. Pollay, 145 A.D.2d 972, 538 N.Y.S.2d 714, supra; People v. Mirella, 105 A.D.2d 1012, 1013, 483 N.Y.S.2d 125). Moreover, the SCI specifies 50 bad checks that defendant issued to 24 different named Cortland County businesses during November and December of 1997, thereby sufficiently apprising defendant of the subject of the accusation, i.e., the fraudulent scheme and conduct directed at multiple identified victims. As such, the instrument sufficiently alleges " ' * * * where, when and what the defendant did' " (People v. Iannone, supra, at 598, 412 N.Y.S.2d 110, 384 N.E.2d 656, quoting Pitler, N.Y. Crim. Practice Under the CPL, p 302; see, People v. Diaz, 233 A.D.2d 777, 778, 650 N.Y.S.2d 436; People v. Palmer, 108...