People v. Torres

• Citation: 199 A.D.3d 1076,156 N.Y.S.3d 565
• Decision Date: 04 November 2021
• Docket Number: 112621
• Parties: The PEOPLE of the State of New York, Respondent, v. George TORRES, Appellant.
• Court: New York Supreme Court — Appellate Division

199 A.D.3d 1076
156 N.Y.S.3d 565

The PEOPLE of the State of New York, Respondent,
v.
George TORRES, Appellant.

112621

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

Calendar Date: September 8, 2021
Decided and Entered: November 4, 2021

156 N.Y.S.3d 566

Ebanks Law Firm, New York City (Alberto Ebanks of counsel), for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Christian P. Morris of counsel), for respondent.

Before: Garry, P.J., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Clark, J.

156 N.Y.S.3d 567

Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered May 17, 2019, convicting defendant upon his plea of guilty of the crimes of kidnapping in the second degree, kidnapping in the second degree as a sexually motivated felony and tampering with physical evidence.

In November 2018, based upon allegations that he abducted a 12–year–old girl for the purpose of his own direct sexual gratification and that he thereafter destroyed evidence of the abduction, defendant was indicted on the charges of kidnapping in the second degree, kidnapping in the second degree as a sexually motivated felony, tampering with physical evidence and endangering the welfare of a child. After unsuccessfully moving for, among other things, dismissal of the indictment on the basis that the evidence before the grand jury was legally insufficient, defendant pleaded guilty to the indictment, with no promises as to his sentence. Defendant was subsequently sentenced to concurrent prison terms of 9½ years, followed by 10 years of postrelease supervision, on each of his kidnapping convictions, as well as a concurrent prison term of 1 to 4 years for his conviction of tampering with physical evidence. County Court dismissed the charge of endangering the welfare of a child on the basis that it merged with the kidnapping convictions. Defendant appeals.

Primarily relying upon the dissent in People v. Vail, 174 A.D.3d 1365, 105 N.Y.S.3d 772 (2019, NeMoyer, J., dissenting), defendant argues that the evidence before the grand jury failed to establish that he committed the crime of kidnapping in the second degree, as defined in Penal Law § 135.20 (see Penal Law §§ 135.00, 135.30 ). Defendant contends that his actions should not be criminalized as he was merely aiding a runaway minor and not committing the crime of kidnapping. Such argument, however, is directed at the sufficiency of the evidence before the grand jury and is therefore foreclosed by defendant's guilty plea (see People v. Guerrero, 28 N.Y.3d 110, 117, 42 N.Y.S.3d 80, 65 N.E.3d 51 [2016] ; People v. Hansen, 95 N.Y.2d 227, 232, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ; People v. King, 185 A.D.3d 1090, 1090–1091, 126 N.Y.S.3d 804 [2020] ). In any event, were this properly before us, we would – upon our review of the grand jury minutes¹ and relevant case law – find such argument to be unavailing (see e.g. People v. Vail, 174 A.D.3d at 1366–1367, 105 N.Y.S.3d 772 ; People v. Delp, 156 A.D.3d 1450, 1451–1452, 68 N.Y.S.3d 247 [2017], lv denied 31 N.Y.3d 983, 77 N.Y.S.3d 660, 102 N.E.3d 437 [2018] ; People v. De Vyver, 89 A.D.2d 745, 747, 453 N.Y.S.2d 915 [1982] ; compare People v. Legrand, 194 A.D.3d 1073, 1074–1075, 149 N.Y.S.3d 206 [2021], lv denied 37 N.Y.3d 972, 150 N.Y.S.3d 704, 172 N.E.3d 816 [2021] ). Defendant's contention

156 N.Y.S.3d 568

that the grand jury instructions were legally deficient is similarly foreclosed by his guilty plea (see People v. Fatiu, 158 A.D.3d 890, 891, 71 N.Y.S.3d 182 [2018] ; People v. Rapp, 133 A.D.3d 979, 979, 20 N.Y.S.3d 663...