People v. Hardie

• Decision Date: 29 December 2022
• Docket Number: s. 110290,112077
• Citation: 2022 NY Slip Op 07480
• Parties: The People of the State of New York, Respondent, v. Thomas Hardie, Appellant.
• Court: New York Supreme Court — Appellate Division

2022 NY Slip Op 07480

The People of the State of New York, Respondent,
v.
Thomas Hardie, Appellant.

Nos. 110290, 112077

Supreme Court of New York, Third Department

December 29, 2022

Calendar Date:November 21, 2022.

Marlene O. Tuczinski, Chatham, for appellant.

P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), for respondent.

Before: Egan Jr., J.P., Aarons, Reynolds Fitzgerald, Fisher and McShan, JJ.

Fisher, J.

Appeals (1) from a judgment of the County Court of Albany County (William A. Carter, J.), rendered January 12, 2018, convicting defendant upon his plea of guilty of the crime of burglary in the second degree, and (2) by permission, from an order of the Supreme Court (Roger D. McDonough, J.), entered January 17, 2020 in Albany County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant was charged by indictment with burglary in the first degree, burglary in the second degree, endangering the welfare of a child (two counts) and driving while intoxicated, in connection with an incident where he broke into the victim's residence and attacked her in front of two children. ^[1] Defendant pleaded guilty to the crime of burglary in the second degree in full satisfaction of the charges against him and agreed to waive his right to appeal. County Court sentenced defendant to a prison term of six years to be followed by five years of postrelease supervision. Thereafter, defendant moved to vacate his judgment of conviction contending, among other things, that he had been deprived of the effective assistance of counsel, a motion opposed by the People. Supreme Court denied defendant's motion in a written decision, without a hearing. Defendant appeals from the judgment of conviction and, by permission, the denial of his CPL 440.10 motion.

Initially, as the People concede and our review of the record confirms, defendant's waiver of the right to appeal is invalid (see People v Brewster, 194 A.D.3d 1266, 1267 [3d Dept 2021], lv denied 37 N.Y.3d 970 [2021]; see also People v Loya, 204 A.D.3d 1255, 1256 [3d Dept 2022], lv denied 38 N.Y.3d 1072 [2022]; People v Downs, 194 A.D.3d 1118, 1118-1119 [3d Dept 2021], lv denied 37 N.Y.3d 971 [2021]). Next, defendant claims that the indictment must be dismissed because it was signed by an Assistant District Attorney as opposed to the District Attorney. Although the waiver of the right to appeal is invalid, defendant did not move to dismiss the indictment and this argument is reviewable only if such signature renders the indictment jurisdictionally defective (see People v Morris, 161 A.D.3d 1219, 1219-1220 [3d Dept 2018], lv denied 33 N.Y.3d 1033 [2019]). However, since an indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime (see People v West, 189 A.D.3d 1981, 1983 [3d Dept 2020], lv denied 37 N.Y.3d 975 [2021]), and defendant's sole contention is that the District Attorney did not sign the indictment, this contention is unpreserved (see People v Morris, 161 A.D.3d at 1219-1220; People v Brown, 17 A.D.3d 869, 870 [3d Dept 2005]).

Defendant also contends that his guilty plea was involuntary, as reflected by his statements made during his plea colloquy...