B People v. Wilson , 40 N.Y.S.3d 628 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 3, 2016 105573B
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
SOLOMON A. WILSON,
Appellant.
________________________________
Calendar Date: September 13, 2016
Before: McCarthy, J.P., Garry, Devine, Clark and Mulvey, JJ.
__________
Kevin J. Bauer, Albany, for appellant, and appellant
pro se.
Chad W. Brown, Acting District Attorney, Johnstown (Amanda
M. Nellis of counsel), for respondent.
__________
Clark, J.
Appeal from a judgment of the County Court of Fulton County
(Hoye, J.), rendered November 1, 2012, convicting defendant upon
his plea of guilty of the crimes of criminal possession of a
controlled substance in the third degree and conspiracy in the
fourth degree.
In 2012, following his unsuccessful motion to suppress a
quantity of crack cocaine discovered on his person, defendant, in
full satisfaction of two pending indictments, pleaded guilty to
criminal possession of a controlled substance in the third degree
and conspiracy in the fourth degree and waived his right to
appeal. In accordance with the plea agreement, defendant was
thereafter sentenced, as a second felony offender, to an
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aggregate prison term of five years, followed by two years of
postrelease supervision. Defendant appealed and his assigned
counsel filed an Anders brief and moved to be relieved as
counsel. This Court rejected the Anders brief, withheld decision
and assigned new counsel to address certain issues raised by
defendant in his pro se brief and any other issues disclosed in
the record (123 AD3d 1157 [2014]).
We now affirm. Initially, we reject defendant's challenge
to the validity of his waiver of appeal, as we are satisfied upon
our review of the plea colloquy and the written waivers of appeal
that defendant knowingly, intelligently and voluntarily waived
his right to appeal (see People v Ramos, 135 AD3d 1234, 1235
[2016], lv denied 28 NY3d 935 [2016]; People v Butler, 134 AD3d
1349, 1349-1350 [2015], lv denied 27 NY3d 963 [2016]; People v
Viele, 130 AD3d 1097, 1097 [2015]). The valid waiver of appeal
precludes defendant's challenge to County Court's denial of his
motion to suppress the crack cocaine found on his person (see
People v Spellicy, 123 AD3d 1228, 1230 [2014], lv denied 25 NY3d
992 [2015]; People v Tole, 119 AD3d 982, 983 [2014]; People v
Colon, 101 AD3d 1161, 1161 [2012], lv denied 21 NY3d 1003
[2013]).
Defendant further argues that count 2 of the indictment
charging him with conspiracy in the fourth degree was
jurisdictionally defective because it failed to allege all
material elements of the crime, particularly the object crime
that he and another person allegedly conspired to commit. While
this argument survives both defendant's guilty plea and his valid
waiver of appeal (see People v Hansen, 95 NY2d 227, 230-233
[2000]; People v Mydosh, 117 AD3d 1195, 1196 [2014], lv denied 24
NY3d 963 [2014]; People v Martinez, 79 AD3d 1378, 1379 [2010], lv
denied 16 NY3d 798 [2011]), we find no merit to it. "An
indictment is jurisdictionally defective only if it does not
effectively charge the defendant with the commission of a
particular crime – for instance, if it fails to allege that the
defendant committed acts constituting every material element of
the crime charged" (People v D'Angelo, 98 NY2d 733, 734-735
[2002]; see People v Slingerland, 101 AD3d 1265, 1266 [2012], lv
denied 20 NY3d 1104 [2013]). As relevant here, "[a] person is
guilty of conspiracy in the fourth degree when, with intent that
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conduct constituting . . . a class B or class C felony be
performed, he or she agrees with one or more persons to engage in
or cause the performance of such conduct" (Penal Law § 105.10
[1]).
Here, count 2 of the indictment charging conspiracy in the
fourth degree incorporated by reference the applicable statutory
provision, which reference "operates without more to constitute
allegations of all the elements of the crime" (People v Cohen, 52
NY2d 584, 586 [1981]; see People v D'Angelo, 98 NY2d at 735;
People v Rapp, 133 AD3d 979, 980 [2015]). Moreover, with respect
to the object crime, count 2 of the indictment specifically set
forth the same conduct alleged in count 1 of the indictment
charging bribery in the second degree, a class C felony (see
Penal Law § 200.03). Accordingly, as count 2 of the challenged
indictment charged defendant with the commission of a particular
crime and sufficiently apprised him of that crime (see People v
Ray, 71 NY2d 849, 850 [1988]; People v Decker, 139 AD3d 1113,
1115 [2016], lv denied 28 NY3d 928 [2016]; People v Rapp, 133
AD3d at 980), it was not jurisdictionally defective.
McCarthy, J.P., Garry, Devine and Mulvey, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court