People v. West, 111695

• Decision Date: 31 December 2020
• Docket Number: 111695
• Citation: 189 A.D.3d 1981,139 N.Y.S.3d 413
• Parties: The PEOPLE of the State of New York, Respondent, v. Allisa C. WEST, Appellant.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1981
139 N.Y.S.3d 413

The PEOPLE of the State of New York, Respondent,
v.
Allisa C. WEST, Appellant.

111695

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

Calendar Date: November 18, 2020
Decided and Entered: December 31, 2020

Edward S. Graves, Indian Lake, for appellant.

Christopher C. Shambo, District Attorney, Indian Lake, for respondent.

Before: Lynch, J.P., Clark, Mulvey and Colangelo, JJ.

MEMORANDUM AND ORDER

Clark, J.

In 2016, defendant pleaded guilty to criminal mischief in the third degree and was placed on interim probation. As the result of a January 2017 incident, she faced new charges and a petition alleging that she had violated the terms of her interim probation. Defendant was found to have violated her interim probation after a hearing, and that matter was adjourned for sentencing. In May 2017, an agreement was reached to address sentencing in that matter and resolve the charges arising from the January 2017 incident. As is relevant here, defendant pleaded guilty to assault in the second degree in satisfaction of a superior court information addressing her January 2017 conduct and was sentenced to a prison term of 3½ years to be followed by postrelease supervision of three years. She was then sentenced to a concurrent jail term of one year upon her 2016 conviction of criminal mischief in the third degree. As contemplated by the agreement, County Court (Feldstein, J.) gave defendant five days to put her affairs in order before surrendering herself to begin serving her sentences.

Defendant failed to appear as directed, was apprehended in Florida several months later and was then charged in an indictment with bail jumping in the second degree. Following unsuccessful efforts to dismiss the indictment or reduce the charge, defendant pleaded guilty as charged. County Court (Hoye, J.) sentenced defendant, as a second felony offender, to a prison term of 1½ to 3 years to run concurrently with her 2017 sentences. Defendant appeals solely from the judgment convicting her of bail jumping in the second degree.

We affirm. Defendant argues that the indictment "does not effectively charge ... [her] with the commission of" bail jumping in the second degree, a jurisdictional challenge that survives her guilty plea ( People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978] ; accord People v. Wilder, 69 N.Y.2d 870, 872, 514 N.Y.S.2d 715, 507 N.E.2d 308 [1987] ; see People v. Park, 163 A.D.3d 1060, 1064, 81 N.Y.S.3d 321 [2018] ). She bases that argument upon the fact that bail jumping in the second degree requires that a defendant's failure to appear occur after having been "released from custody or allowed to remain at liberty, either upon bail or upon his [or her] own recognizance, upon condition that he [or she] will subsequently appear personally in connection with a charge against him [or her] of committing a felony" ( Penal Law § 215.56 ; see People v. Wilder, 93 N.Y.2d 352, 359, 690 N.Y.S.2d 483, 712 N.E.2d 652 [1999] ). Although defendant persuasively argues that her actions did not constitute bail jumping in the second degree,¹ her unchallenged

139 N.Y.S.3d 416

guilty plea signaled her "intention not to litigate the question of [her] guilt," which places that issue beyond our review ( People v. Lynn, 28 N.Y.2d 196, 201, 321 N.Y.S.2d 74, 269 N.E.2d 794 [1971] ; see People v. Taylor, 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755 [1985] ; see generally People v. Hill, 220 A.D.2d 905, 906, 632 N.Y.S.2d 691 [1995] ). What is before us is whether the indictment was jurisdictionally defective, which occurs where the...