People v. Rapp

• Citation: 20 N.Y.S.3d 663,133 A.D.3d 979
• Parties: The PEOPLE of the State of New York, Respondent, v. John J. RAPP, Appellant.
• Decision Date: 12 November 2015
• Court: New York Supreme Court Appellate Division

133 A.D.3d 979
20 N.Y.S.3d 663

The PEOPLE of the State of New York, Respondent,
v.
John J. RAPP, Appellant.

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

Nov. 12, 2015.

20 N.Y.S.3d 664

Brian M. Quinn, Albany, for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., ROSE and CLARK, JJ.

CLARK, J.

133 A.D.3d 979

Appeals (1) from a judgment of the County Court of Warren County (Hall Jr., J.), rendered December 17, 2013, convicting defendant upon his plea of guilty of the crimes of criminal sale of a controlled substance in the third degree and unlawfully dealing with a child in the first degree, and (2) by permission, from an order of said court, entered May 30, 2014, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In April 2012, defendant was indicted and charged with two counts each of criminal possession of a controlled substance in the third degree, criminal sale of a controlled substance in the third degree and conspiracy in the fourth degree, as well as one count of unlawfully dealing with a child in the first degree, all stemming from two alleged drug transactions in the City of Glens Falls, Warren County. In full satisfaction of the indictment, defendant pleaded guilty to one count each of criminal sale of a controlled substance in the third degree and unlawfully dealing with a child in the first degree and waived his right to appeal. He was sentenced, as a second felony offender, to a prison term of seven years to be followed by three years of postrelease supervision.¹ Defendant thereafter moved, pursuant to CPL 440.10, to vacate the judgment on the basis of, among other things, the ineffective assistance of counsel. County Court denied the motion without a hearing. Defendant now appeals from the judgment of conviction and, with permission, from the order denying his postconviction motion.

Initially, defendant's unchallenged waiver of appeal precludes his contention that the grand jury minutes were deficient on the basis that the People may have failed to instruct the grand jury on the agency defense (see People v. Hansen, 95 N.Y.2d 227, 230, 715 N.Y.S.2d, 369 738 N.E.2d 773 [2000] ), as well as his claim that the agreed-upon sentence was harsh and excessive (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Toback, 125 A.D.3d 1060, 1061, 3 N.Y.S.3d 444 [2015], lv. denied 25 N.Y.3d 993, 10 N.Y.S.3d 536, 32 N.E.3d 973 [2015] ; People v. Miner, 120 A.D.3d 1449, 1450, 991 N.Y.S.2d 679 [2014] ).

133 A.D.3d 980

While portions of defendant's claim that the indictment was jurisdictionally defective survive his guilty plea and waiver of appeal (see People v. Casey, 95 N.Y.2d 354, 363, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ; People v. Slingerland, 101 A.D.3d 1265, 1265–1266, 955 N.Y.S.2d 690 [2012], lv. denied

20 N.Y.S.3d 665

20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 [2013] ), they are without merit. Specifically, "where an indictment count incorporates by reference the statutory provision applicable to the crime intended to be charged, it has been repeatedly held that this is sufficient to apprise the defendant of the charge and, therefore, renders the count jurisdictionally valid" (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] [internal quotation marks, brackets and citations omitted] ). Here, because counts two and seven of the indictment—i.e., the counts to which defendant pleaded guilty—recite, among other things, the specific section of the Penal Law under which defendant was charged, those counts of the indictment were not jurisdictionally defective (see People v. Cruz, 104 A.D.3d 1022, 1023–1024, 960 N.Y.S.2d 741 [2013] ; People v. Motz, 52 A.D.3d 1029, 1030, 859 N.Y.S.2d 531 [2008], lv. denied 11 N.Y.3d 791, 866 N.Y.S.2d 618, 896 N.E.2d 104 [2008] ). Moreover, although the People concede that the two counts of conspiracy in the fourth degree are jurisdictionally defective, defects contained in the counts to which defendant did not plead guilty constitute mere technical flaws that are precluded by defendant's waiver of appeal (see People v. Olmstead, 111 A.D.3d 1063, 1064, 975 N.Y.S.2d 359 [2013] ; People v. Maye, 69 A.D.3d 1115, 1116, 893 N.Y.S.2d 375 [2010], lv. denied 15 N.Y.3d 807, 908 N.Y.S.2d 167, 934 N.E.2d 901 [2010] ).

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