green
Positive treatment
Issue: defendant forfeited claimNY ↗
Issue: indictment violationNY ↗
Issue: guilty plea and appeal waiverNY ↗
20.4 score
Top citers, strongest first. 12 distinct citers.
How cited ↗
discussed
Cited as authority (rule)
People v. Colon-Colon
Accordingly, the judgment should be reversed, the guilty plea vacated, the indictment waiver rejected, the SCI dismissed, and the matter remitted to the Genesee County Court for proceedings pursuant to CPL 470.45 ( see People v Priest, 155 AD3d 1599, 1599-1600 [4th Dept 2017]; see also People v Eulo, 156 AD3d 720, 721 [2d Dept 2017]; Walker, 148 AD3d at 1570-1571 ; People v Libby, 246 AD2d 669, 671 [2d Dept 1998]).
discussed
Cited as authority (rule)
People v. Cardona-Velasquez
The defendant’s contention that he did not validly waive his right to be prosecuted by an indictment is not precluded by his plea of guilty or his valid waiver of his right to appeal (see People v Boston, 75 NY2d 585 , 589 and n [1990]; People v Sze, 113 AD3d 795 [2014]; People v Davenport, 106 AD3d 1197, 1198 [2013]; People v Libby, 246 AD2d 669, 670 [1998]).
discussed
Cited as authority (rule)
People v. Aquart
The defendant’s challenge to the validity of his waiver of indictment was not forfeited by his plea of guilty or precluded by his valid waiver of the right to appeal (see People v Boston, 75 NY2d 585 , 589 n [1990]; People v Janelle, 146 AD3d 808 [2017]; People v Barnhill, 130 AD3d 839, 839 [2015]; People v Yunga, 122 AD3d 951, 951 [2014]; People v Sze, 113 AD3d 795 [2014]; People v Libby, 246 AD2d 669, 670-671 [1998]).
discussed
Cited as authority (rule)
People v. Barnhill
“The defendant’s challenge to the validity of his waiver of indictment is not forfeited by his plea of guilty and would not be precluded by any valid waiver of the right to appeal” (People v Yunga, 122 AD3d 951, 951 [2014]; see People v Boston, 75 NY2d 585 , 589 n [1990]; People v Sze, 113 AD3d 795 [2014]; People v Libby, 246 AD2d 669, 670-671 [1998]).
discussed
Cited as authority (rule)
People v. Yunga
The defendant’s challenge to the validity of his waiver of indictment is not forfeited by his plea of guilty and would not be precluded by any valid waiver of the right to appeal (see People v Boston, 75 NY2d 585 , 589 n [1990]; People v Sze, 113 AD3d 795 [2014]; People v Libby, 246 AD2d 669, 670-671 [1998]).
discussed
Cited as authority (rule)
People v. Milton
This defect survives the defendant’s failure to raise this claim in the Supreme Court, his plea of guilty, and his waiver of the right to appeal (see People v Zanghi, 79 NY2d at 818 ; People v Menchetti, 76 NY2d at 475 ; People v Edwards, 39 AD3d at 876 ; People v June, 30 AD3d 1016, 1017 [2006]; People v Libby, 246 AD2d 669, 670 [1998]).
discussed
Cited as authority (rule)
People v. Crummell
Although the defendant’s challenge to the count in the indictment charging criminal possession of a weapon in the second degree as jurisdictionally defective survives the valid entry of his plea of guilty and waiver of the right to appeal (see People v Iannone, 45 NY2d 589, 600 [1978]; People v Brown, 75 AD3d 655, 656 [2010]; People v Libby, 246 AD2d 669, 670 [1998]), that count was not jurisdictionally defective (see People v Hansen, 95 NY2d 227, 231 [2000]; People v Ray, 71 NY2d 849, 850 [1988]).
discussed
Cited as authority (rule)
People v. Dennis
Defendant’s next argument, that his waiver of indictment was invalid given the absence of evidence that a local criminal court held him over for grand jury action, is a jurisdictional one which survives his appeal waiver and guilty plea (see CPL 195.10 [1] [a]; People v Boston, 75 NY2d 585 , 589 n [1990]; People v Libby, 246 AD2d 669, 670 [1998]).
discussed
Cited as authority (rule)
People v. Edwards
This defect survives the defendant’s failure to raise this claim in the Supreme Court, his plea of guilty, and his waiver of the right to appeal (see People v Zanghi, supra; People v Manchetti, supra; People v June, 30 AD3d 1016 [2006]; People v Libby, 246 AD2d 669, 670 [1998]).
discussed
Cited as authority (rule)
People v. Sterling
Initially, we note that inasmuch as “[f]ailure to adhere to the statutory procedure for waiving indictment . . . [is] considered jurisdictional, affecting ‘the organization of the court or the mode of proceedings,’ ” a defendant is not precluded by a guilty plea from raising such a challenge (People v Boston, 75 NY2d 585 , 589 n [1990] [citation omitted]; see People v Gray, 86 NY2d 10, 21 [1995]; People v Libby, 246 AD2d 669, 670 [1998]; but see People v Montanez, 287 AD2d 407, 408 [2001], lv denied 97 NY2d 685 [2001]).
discussed
Cited as authority (rule)
People v. Donnelly
Compliance with this unequivocal dictate is indispensable to a knowing and intelligent waiver (see People v Page, 88 NY2d 1, 6-10 [1996]) and the failure to adhere to this strict procedure is a jurisdictional defect which survives a guilty plea and appeal waiver * and need not be preserved for review by a motion to withdraw the plea (see People v Libby, 246 AD2d 669, 670 [1998]; see also People v Boston, supra at 587, 589 n).
discussed
Cited as authority (rule)
People v. Hancock
The People properly concede that the plea must be vacated because the defendant’s waiver of indictment occurred after the grand jury returned an indictment covering the same criminal transactions (see CPL 195.10 [2] [b]; People v Boston, 75 NY2d 585, 588-589 [1990]; People v Libby, 246 AD2d 669, 670-671 [1998]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Barbara Lee Hoisington
v.
Barbara Lee Hoisington
Appellate Division of the Supreme Court of the State of New York.
Jan 26, 1998.
Published
Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered January 14, 1997, convicting her of criminal sale of a controlled substance in the third degree, upon her plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf., People v Gonzalez, 47 NY2d 606). Mangano, P. J., Copertino, Joy, Florio and Luciano, JJ., concur.