People v. Jackson

• Decision Date: 23 January 1978
• Citation: 60 A.D.2d 893,401 N.Y.S.2d 526
• Parties: The PEOPLE, etc., Respondent, v. Donald JACKSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 526

401 N.Y.S.2d 526

60 A.D.2d 893

The PEOPLE, etc., Respondent, v. Donald JACKSON, Appellant.

Supreme Court, Appellate Division, Second Department.

Jan. 23, 1978.

Perone & Tenzer, White Plains (John M. Perone, White Plains, of counsel), for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Stephanie Mary Mahon and Anthony Joseph Servino, White Plains, of counsel), for respondent.

Before DAMIANI, J. P., and TITONE, MARGETT and SHAPIRO, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Westchester County rendered February 3, 1977, convicting him of sodomy in the first degree and possession of a weapon in the fourth degree, upon his plea of guilty, and imposing sentence. The appeal also brings up for review an order of the same court, dated September 16, 1976, which denied defendant's motion to dismiss the sodomy count contained in the indictment upon the ground that it lacks factual specificity.

Order reversed and judgment modified, on the law, motion granted, and the conviction of sodomy in the first degree, and the sentence imposed thereon, are reversed and the said count is dismissed, with leave to resubmit the sodomy charge to another grand jury. As so modified, judgment affirmed.

In our view the first count of the indictment, which charges the crime of sodomy in the first degree under section 130.50 (subd. 1) of the Penal Law by simply using the words of the statute, is legally insufficient because it fails to state the exact nature of the deviate sexual intercourse with which defendant is charged (see CPL 200.50, subd. 7; People v. Guest, 53 A.D.2d 892, 385 N.Y.S.2d 376; People v. Barnes, 44 A.D.2d 740, 354 N.Y.S.2d 459; People v. Clough, 43 A.D.2d 451, 353 N.Y.S.2d 260; People v. Ebasco Serv., 77 Misc.2d 784, 787-788, 354 N.Y.S.2d 807, 811-812).

The error was not waived by defendant's plea of guilty. Although a guilty plea waives all nonjurisdictional defects (People v. La Ruffa, 40 A.D.2d 1022, 338 N.Y.S.2d 957, affd., 34 N.Y.2d 242, 356 N.Y.S.2d 849, 313 N.E.2d 332, remanded 419 U.S. 959, 95 S.Ct. 219, 42 L.Ed.2d 174, affd. on rearg., 37 N.Y.2d 58, 371 N.Y.S.2d 434, 332 N.E.2d 312, cert. den., 423 U.S. 917, 96 S.Ct. 227, 46 L.Ed.2d 147; People v. Cornell, 50 A.D.2d 608, 375 N.Y.S.2d 386), where an indictment fails to state facts sufficient to constitute the crime charged it is jurisdictionally defective and must be dismissed (People v. McGuire, 5 N.Y.2d 523, 526, 186 N.Y.S.2d 250, 252, 158 N.E.2d 830, 832; People v. Douglas, 12 A.D.2d 194, 198, 209 N.Y.S.2d 734, 738).

The case of People v. Paolillo, 15 Misc.2d 1031, 132 N.Y.S.2d 161, affd., 307 N.Y. 736, 121 N.E.2d 548, is not dispositive on this issue. In that case the defendant pleaded guilty to an information and, on appeal, the judgment of conviction was affirmed. The defendant then moved to reargue the appeal and, for the first time, raised the claim that the Court of Special Sessions was without jurisdiction because the information was insufficiently pleaded. Upon reargument Mr. Justice Munder stated 15 Misc.2d 1031, 1033, 132 N.Y.S.2d 161, 163:

"At no time, until this appeal, did the defendant challenge the sufficiency of the information. While that fact would not bar its review on appeal if the information was legally insufficient, the guilty plea precludes relief where, as here, the information is found to be sufficient."

Thus, the Paolillo case supports the proposition that where a defendant has challenged the sufficiency of an accusatory instrument by a motion to dismiss made at Criminal Term, his subsequent plea of guilty will not bar review of that issue on appeal and prevent a reversal if the charge was insufficiently pleaded in the accusatory instrument.

DAMIANI, J. P., and TITONE and MARGETT, JJ., concur.

SHAPIRO, J., dissents and votes to affirm the order and judgment, with the following memorandum:

I agree that the instant indictment is defective because of its failure to comply with the requirements of subdivision 7 of CPL 200.50 in its failure to describe the exact factual basis for the crime, charging instead the language of the statute, section 130.50 (subd. 1) of the Penal Law (see People v. Guest, 53 A.D.2d 892, 893, 385 N.Y.S.2d 376, 377). However, I do not believe this to be a jurisdictional defect which is not waivable by a plea of guilty. Of course, nonjurisdictional defects are waived by a plea of guilty (see People v. La Ruffa, 40 A.D.2d 1022, 338 N.Y.S.2d 957, affd., 34 N.Y.2d 242, 356 N.Y.S.2d 849, 313 N.E.2d 332, remanded 419 U.S. 959, 95 S.Ct. 219, 42 L.Ed.2d 174, affd. on rearg., 37 N.Y.2d 58, 371 N.Y.S.2d 434, 332 N.E.2d 312, cert. den., 423 U.S. 917, 96 S.Ct. 227, 46 L.Ed.2d 147; cf. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274). In People v. Guest (supra ), similar counts of a multi-count indictment were held bad, after trial, because of the impossibility of determining which counts of the indictment applied to the specific acts committed by the defendant. The Guest case did not involve a guilty plea.

In People v. Barnes, 44 A.D.2d 740, 354 N.Y.S.2d 459, we affirmed an order which dismissed a similarly defective indictment. That case involved an appeal by the People from the order of dismissal.

An illustration of the type of defect in an indictment which would be held jurisdictional may be found in People v. McGuire, 5 N.Y.2d 523, 526, 186 N.Y.S.2d 250, 252, 158 N.E.2d 830, 832. There the indictment failed to allege a necessary element of the crime scienter so that when the defendant was found guilty (after trial), he was simply guilty of doing something which was not criminal. The failure of such indictment to thus allege an essential element of the crime is jurisdictional (see, e. g., People v. Douglas, 12 A.D.2d 194, 198, 209 N.Y.S.2d 734, 738; People v. Hartwell, ...