People v. Hall

• Decision Date: 19 February 2015
• Citation: 4 N.Y.S.3d 619,2015 N.Y. Slip Op. 01487,125 A.D.3d 1095
• Parties: The PEOPLE of the State of New York, Respondent, v. Tyquan HALL, Appellant.
• Court: New York Supreme Court — Appellate Division

125 A.D.3d 1095
4 N.Y.S.3d 619
2015 N.Y. Slip Op. 01487

The PEOPLE of the State of New York, Respondent
v.
Tyquan HALL, Appellant.

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

Feb. 19, 2015.

4 N.Y.S.3d 620

Alexander W. Bloomstein, Hillsdale, for appellant.

Joseph Stanzione, District Attorney, Catskill (Danielle D. McIntosh of counsel), for respondent.

Before: LAHTINEN, J.P., EGAN JR., LYNCH and DEVINE, JJ.

Opinion

LAHTINEN, J.P.

125 A.D.3d 1095

Appeals (1) from a judgment of the County Court of Greene County (Lalor, J.), rendered February 23, 2010, convicting defendant upon his plea of guilty of the crime of burglary in the first degree, and (2) by permission, from an order of said court (Pulver Jr., J.), entered June 28, 2013, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

The underlying facts are set forth in our decision in an earlier appeal by one of the several individuals who allegedly acted together with defendant in committing various crimes during the course of entering a home in the Town of Catskill, Greene County (People v. Dixon, 93 A.D.3d 894, 939 N.Y.S.2d 199 [2012] ). Defendant and codefendant Melvin Lett Jr.—who was the only one of the four not wearing a mask—were charged together in a 26–count indictment, and two other individuals—Duane Dixon and Timothy Hall Jr.—were also indicted for the same crimes. Lett pleaded guilty to burglary in the first degree (count one of the indictment) as part of a plea deal in which he, among other things, agreed not to testify on behalf of a codefendant should any of the other three go to trial. Shortly thereafter, Dixon, Timothy Hall and then defendant accepted similar plea bargains, with each pleading guilty to one count of burglary in the first degree and agreeing not to testify on behalf of any codefendant. Defendant's motion to withdraw his plea was denied, and County Court (Lalor, J.) sentenced him in accordance with the plea agreement to 8 ½ years in prison together

125 A.D.3d 1096

with five years of postrelease supervision.¹ His CPL 440.10 motion to vacate his judgment of conviction was denied without a hearing by County Court (Pulver Jr., J.). Defendant appeals from both his judgment of conviction and, by permission, the order denying his CPL article 440 motion.

Defendant argues that the first four counts of the indictment—charging burglary in the first degree and three counts of robbery in the first degree—were jurisdictionally defective, and that County Court (Lalor, J.) erred in denying his motion to dismiss those counts and in granting the People's motion to amend. We are unpersuaded. “While a defendant's guilty plea does not waive jurisdictional defects in an indictment, an indictment is jurisdictionally defective only if the acts alleged to have been performed by the defendant do not constitute an actual crime” (People v. Brown, 75 A.D.3d 655, 656, 903 N.Y.S.2d 825 [2010] [citations omitted] ). The first four counts incorporated

4 N.Y.S.3d 621

by reference the applicable specific statutory provisions, which generally is “ ‘sufficient to apprise ... defendant of the charge[s] and, therefore, render[ ] the count[s] jurisdictionally valid’ ” (People v. Cane, 123 A.D.3d 1301, 1302, 996 N.Y.S.2d 797 [2014], quoting People v. Moon, 119 A.D.3d 1293, 1294, 990 N.Y.S.2d 98 [2014], lv. denied 24 N.Y.3d 1004, 997 N.Y.S.2d 122, 21 N.E.3d 574 [2014] ; cf. People v. Boula, 106 A.D.3d 1371, 1372, 966 N.Y.S.2d 259 [2013], lv. denied 21 N.Y.3d 1040, 972 N.Y.S.2d 538, 995 N.E.2d 854 [2013] [holding that such specific statutory reference “may be negated ... by the inclusion of conduct that does not constitute the crime charged”] ). In addition, the People promptly moved to amend the indictment to add the specific weapons used to the originally recited list of firearms from the statute (see Penal Law §§ 140.30[4] ; 160.15[4] ) and to also add that each of the first four counts was an armed felony offense (see CPL 200.50[7] [b] ; see also People v. Giordano, 274 A.D.2d 748, 749, 711 N.Y.S.2d 557 [2000] ; People v. Coleman, 235 A.D.2d 928, 929, 653 N.Y.S.2d 423 [1997], lv. denied 89 N.Y.2d 1033, 659 N.Y.S.2d 864, 681 N.E.2d 1311 [1997] ). This amendment to the indictment did not change the theory of the case or prejudice defendant and, accordingly, it was not error to allow the amendment (see People v. Giordano, 274 A.D.2d at 749, 711 N.Y.S.2d 557 ; see also CPL 200.70[1] ; People v. Cruz, 61 A.D.3d 1111, 1112, 876 N.Y.S.2d 240 [2009] ; People v. Latour, 11 A.D.3d 819, 820, 783 N.Y.S.2d 429 [2004], lv. denied 4 N.Y.3d 800, 795 N.Y.S.2d 175, 828 N.E.2d 91 [2005] ).

Next, defendant contends that his plea was not voluntarily made and that it was error to deny his motion to withdraw his plea. These contentions rest upon the same provision of the

125 A.D.3d 1097

plea bargain as was unsuccessfully challenged by his codefendant in People v. Dixon, 93 A.D.3d at 895–896, 939 N.Y.S.2d 199. Defendant pleaded guilty at the same time and under the same conditions as Dixon. He has not pointed to any facts in the record up to the time that he accepted the plea that would distinguish his case and require a different result as to these issues than the one reached in People v. Dixon (supra ). His further argument that his sentence was harsh and excessive is precluded by his valid waiver of appeal (see id. at 896, 939 N.Y.S.2d 199 ; People v. Richardson, 83 A.D.3d 1290, 1292, 920 N.Y.S.2d 752 [2011], lv. denied 17 N.Y.3d 821, 929 N.Y.S.2d 809, 954 N.E.2d 100 [2011] ). The judgment of conviction must thus be affirmed.

Finally, we turn to defendant's assertion that his CPL article 440 motion should not have been denied without a hearing. In his motion, defendant urged that the provision of the plea agreement precluding a codefendant from...