                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered:   December 22, 2016               106053
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________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JOE DARRELL,
                    Appellant.
________________________________


Calendar Date:   November 17, 2016

Before:   Peters, P.J., Garry, Devine, Mulvey and Aarons, JJ.

                             __________


     Todd G. Monahan, Schenectady, for appellant.

      Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas
J. Evanovich of counsel), for respondent.

                             __________


Garry, J.

      Appeals (1) from a judgment of the County Court of Clinton
County (McGill, J.), rendered July 23, 2013, convicting defendant
upon his plea of guilty of the crime of promoting prison
contraband in the first degree, and (2) by permission, from an
order of said court, entered December 10, 2015, which denied
defendant's motion pursuant to CPL 440.10 to vacate the judgment
of conviction, without a hearing.

      Defendant, an inmate, was charged with criminal possession
of a weapon in the third degree and promoting prison contraband
in the first degree after he was found to be in possession of a
scalpel during intake processing at the correctional facility.
While being processed, defendant set off the metal detector and a
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metal detection chair twice alerted to the presence of metal on
his person, and he admitted that he had a scalpel which was later
recovered during a strip search. Defendant's motion to suppress
his statements was denied following a Huntley hearing, as was his
request for the personnel records of one of the correction
officers who retrieved the weapon during the strip search.
Pursuant to a plea agreement that included a waiver of appeal,
defendant pleaded guilty to promoting prison contraband in the
first degree in exchange for a prison sentence of 2 to 4 years to
run consecutively to his current sentence, as a second felony
offender. Defendant's subsequent motion to vacate the judgment
of conviction was denied. He now appeals from the judgment of
conviction and, with permission, from the order denying his
motion to vacate.

      Initially, defendant's oral waiver of appeal, which was
unaccompanied by a written waiver, is not valid, as County Court
failed to adequately convey that "the right to appeal is separate
and distinct from those rights automatically forfeited upon a
plea of guilty" (People v Lopez, 6 NY3d 248, 256 [2006]; see
People v Larock, 139 AD3d 1241, 1242 [2016], lv denied 28 NY3d
932 [2016]). However, his claims that his guilty plea was not
voluntary and that counsel failed to provide effective assistance
are unpreserved for review on direct appeal, as the record does
not disclose that he made a postallocution motion to withdraw his
plea on this ground (see CPL 220.60 [3]). Moreover, he made no
statements during the plea allocution that negated an element of
the crime or otherwise called into doubt his guilt or the
voluntariness of his plea so as to trigger the narrow exception
to the preservation requirement (see People v Lopez, 71 NY2d 662,
665-666 [1988]; People v Beverly, 140 AD3d 1400, 1401 [2016], lvs
denied 28 NY3d 927, 933 [2016]). Were we to address these
claims, we would find that the plea was knowingly, voluntarily
and intelligently entered with the aid of meaningful
representation (see People v Conceicao, 26 NY3d 375, 382 [2015];
People v Fiumefreddo, 82 NY2d 536, 543 [1993]; People v Briggs,
138 AD3d 1355, 1356 [2016], lv denied 28 NY3d 927 [2016]).

      Next, defendant argues that due to an alleged defect or
error in count two of the indictment, to which he pleaded guilty,
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he did not receive fair notice of the charge against him,
requiring that his plea be vacated. While the charge specified
that the dangerous contraband unlawfully possessed consisted of a
"sharpened toothbrush," the People moved to amend the indictment
to replace the specified contraband with a "scalpel-type"
weapon;1 the record does not reflect that defendant responded to
that motion. However, by entering a knowing and voluntary guilty
plea in which he admitted possessing a sharpened toothbrush,
aware that this motion was pending, defendant forfeited any claim
that there was a defect in the indictment or that the motion
should have been granted (see People v Cooper, 88 AD3d 1009, 1011
[2011], lv denied 17 NY3d 952 [2011]; People v Brown, 75 AD3d
655, 656 [2010]; People v Trank, 58 AD3d 1076, 1077 [2009], lv
denied 12 NY3d 860 [2009]). While a plea does "not waive
jurisdictional defects in [the] indictment, an indictment is
jurisdictionally defective only if the acts alleged to have been
performed by the defendant do not constitute an actual crime"
(People v Hall, 125 AD3d 1095, 1096 [2015] [internal quotation
marks and citation omitted]). Here, the indictment specified the
Penal Law section under which defendant was charged and alleged
all of the elements of the crime,2 and sharpened objects capable
of use as a weapon constitute dangerous contraband (see Penal Law
§ 205.00 [4]; see e.g. People v Carter, 90 AD3d 1159, 1159-1160
[2011]; People v Aponte, 60 AD3d 1199, 1200 [2009]; People v
DePolanco, 267 AD2d 777, 778 [1999], lv denied 94 NY2d 902
[2000]). Thus, the charge to which defendant pleaded guilty is a
crime and the indictment was not jurisdictionally defective and
was sufficient to apprise defendant of the charge (see People v
Brown, 75 AD3d at 656; cf. People v Hurell-Harring, 66 AD3d 1126,
1127-1128 [2009]).



     1
        The People's motion was based upon the evidence presented
to the grand jury. The grand jury minutes are not in the record
on appeal and, accordingly, the record does not establish that
there was a defect or error in the indictment.
     2
        The precise object possessed is not an element of the
crime (see Penal Law § 205.25 [2]).
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      Defendant also challenges County Court's denial, following
a Huntley hearing, of his motion to suppress his inculpatory
statement to the correction officer who was processing him into
the facility when the metal was detected. The hearing testimony
established that as defendant and other inmates were being
processed for admission into the facility by one correction
officer, defendant activated multiple metal detectors. In
response to the officer's inquiry, defendant initially denied
that he had anything on him but then admitted that he had a
"scalpel between his butt cheeks." While defendant did not
receive Miranda warnings at that point, "Miranda warnings are
only required prior to questioning an inmate in a prison setting
where the circumstances of the detention and interrogation . . .
entail added constraint that would lead a prison inmate
reasonably to believe that there has been a restriction on that
person's freedom over and above that of ordinary confinement in a
correctional facility" (People v Hadfield, 119 AD3d 1224, 1226
[2014] [internal quotation marks and citation omitted], lv denied
24 NY3d 1002 [2014]). Here, defendant was not shackled or
isolated and was undergoing routine group intake processing,
which we find "analogous to the relatively brief, generally
public, or otherwise on-the-scene investigatory detentions in
nonprison settings found not custodial for Miranda purposes"
(People v Alls, 83 NY2d 94, 100 [1993], cert denied 511 US 1090
[1994]). As there was no proof of any additional constraint
beyond that which would be routine in a correctional facility,
this was not a custodial interrogation requiring Miranda
warnings, and the motion was properly denied (see id.; People v
Hadfield, 119 AD3d at 1226; People v Passino, 53 AD3d 204, 205-
206 [2008], affd 12 NY3d 748 [2009]).

      Defendant further contends that County Court erred in
denying his request pursuant to Civil Rights Law § 50-a for an in
camera inspection of the personnel records of the correction
officer involved in the retrieval of the contraband to determine
if there were prior complaints by inmates. This provision
authorizes disclosure of confidential records upon "a clear
showing of facts sufficient to warrant the judge to request
records for review" (Civil Rights Law § 50-a [2]). To avoid
"fishing expeditions" (Matter of Dunnigan v Waverly Police Dept.,
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279 AD2d 833, 834 [2001] [internal quotation marks and citation
omitted], lv denied 96 NY2d 710 [2001]), the party seeking
disclosure must demonstrate, "in good faith, some factual
predicate warranting the intrusion" (People v Harris, 121 AD2d
788, 789 [1986] [internal quotation marks and citation omitted],
lv denied 68 NY2d 770 [1986]; accord Matter of Dunnigan v Waverly
Police Dept., 279 AD2d at 834; see Matter of Daily Gazette Co. v
City of Schenectady, 93 NY2d 145, 155-157 [1999]). Defendant's
generalized request and later unsupported allegation, solely
through an unsworn letter of counsel, that the officer had
engaged in improper conduct and thereafter planted the contraband
on his person, failed to establish any good faith, factual basis
supporting this request. Accordingly, we find no abuse of
discretion in the denial of this application (see People v
Harris, 121 AD2d at 789).

      Finally, County Court properly denied defendant's motion to
vacate the judgment of conviction. His claims regarding the
alleged defect in the indictment and the denial of his motions to
suppress and for in camera review of the correction officer's
personnel file were appealable are based entirely upon the facts
in the record and have been fully reviewed and determined to be
without merit on his direct appeal herein (see CPL 440.10 [2];
People v Beckingham, 116 AD3d 1298, 1299 [2014], lv denied 13
NY3d 742 [2009]; People v Anderson, 104 AD3d 968, 972 [2013], lvs
denied 21 NY3d 1013, 1016 [2013]). Likewise, defendant's claim
that counsel was ineffective for failing at the Huntley hearing
to call the correction officer who retrieved the contraband from
defendant's person and who was not present during the intake
processing is belied by the record on direct appeal (see CPL
440.10 [2] [c]; 440.30 [4] [d]). The transcript reflects that
defendant himself made this request at the hearing, which the
court denied based upon the representation of the People that
they would not seek to introduce defendant's statements to this
correction officer at trial. Defendant's assertion that counsel
was remiss in not requesting a Mapp/Dunaway hearing to challenge
the legality of the search and the identity of the confiscated
contraband was not raised on direct appeal, although sufficient
facts appear on the record to have permitted such review (see CPL
440.10 [2] [c]); as such, this issue is also not the proper
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subject of a postverdict motion to vacate. Notably, "[i]n the
context of a guilty plea, a defendant has been afforded
meaningful representation when he or she receives an advantageous
plea and nothing in the record casts doubt upon the apparent
effectiveness of counsel" (People v Briggs, 138 AD3d 1355, 1356
[2016] [internal quotation marks and citation omitted], lv denied
28 NY3d 927 [2016]). As this and the remaining contentions are
wholly unsupported by any affidavits or documentary evidence (see
CPL 440.30 [1], [4] [b]), the motion was properly denied.

     Peters, P.J., Devine, Mulvey and Aarons, JJ., concur.



     ORDERED that the judgment and order are affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
