        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

156
KA 16-01027
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RICK D. CARTER, DEFENDANT-APPELLANT.


JOSEPH P. MILLER, CUBA, FOR DEFENDANT-APPELLANT.

KEITH A. SLEP, DISTRICT ATTORNEY, BELMONT (J. THOMAS FUOCO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Allegany County Court (Terrence M.
Parker, J.), rendered June 22, 2015. The judgment convicted
defendant, upon his plea of guilty, of course of sexual conduct
against a child in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of course of sexual conduct against a child in
the first degree (Penal Law § 130.75). Defendant contends that the
indictment, which charges defendant with predatory sexual assault
against a child (§ 130.96), is jurisdictionally defective because it
includes a time period during which the child was 13 years old or
older.

     As a preliminary matter, we agree with defendant that he was not
required to preserve the above contention for our review, and we
further agree that it is not waived as a result of his guilty plea
inasmuch as it concerns a nonwaivable jurisdictional defect (see
People v Holmes, 101 AD3d 1632, 1633, lv denied 21 NY3d 944; see also
People v Iannone, 45 NY2d 589, 600-601). We conclude, however, that
defendant’s contention lacks merit because the indictment charged
defendant with the crime of predatory sexual assault against a child
“by name and by reference to the relevant section[] . . . of the Penal
Law” (People v Quamina, 207 AD2d 1030, 1030, lv denied 84 NY2d 1014).
Additionally, this is not a case where the inclusion of a period of
time when the victim was 13 years of age or older, in addition to a
period of time when the victim was less than 13 years old, serves to
negate an allegation that the conduct also occurred when the victim
was less than 13 years old (cf. People v Hurell-Harring, 66 AD3d 1126,
1127-1128 n 3).
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                                                         KA 16-01027

     Defendant further contends that the indictment was
jurisdictionally defective because the 4½-year time period set forth
in the indictment is excessive. We reject defendant’s
characterization of that contention as a jurisdictional defect and
instead conclude that it is an unpreserved challenge to the factual
sufficiency of the allegations (see Iannone, 45 NY2d at 600-601; see
also People v Carey, 92 AD3d 1224, 1224-1225, lv denied 18 NY3d 992).
In any event, the contention is without merit. It is well settled
that the crime of predatory sexual assault against a child “is a
continuing offense to which the usual requirements of specificity with
respect to time do not apply” (People v Bradberry, 131 AD3d 800, 801,
lv denied 26 NY3d 1086 [internal quotation marks omitted]), and “time
periods more broad than those alleged in the instant indictment have
been deemed specific enough to satisfy the requirements of due
process” (People v Errington, 121 AD3d 1553, 1554, lv denied 25 NY3d
1163; see People v Devane, 78 AD3d 1586, 1587, lv denied 16 NY3d 858;
People v Furlong, 4 AD3d 839, 840-841, lv denied 2 NY3d 739).

     Defendant further contends that his plea allocution was
jurisdictionally defective because it failed to establish that he
engaged in multiple acts of sexual conduct with a person under the age
of 13 and because it included a time period during which the victim
was 13 years old or older. That contention is actually a challenge to
the factual sufficiency of the plea allocution, which defendant failed
to preserve for our review by failing to move to withdraw the plea or
to vacate the judgment of conviction on that ground (see People v
Newton, 143 AD3d 1286, 1286, lv denied 28 NY3d 1126) and, in any
event, it is without merit. Additionally, although defendant’s
statements regarding the effects of his medications may have
“trigger[ed] [County] [C]ourt’s duty to conduct a further inquiry to
ensure that defendant’s plea was knowingly and voluntarily made”
(People v McNair, 13 NY3d 821, 822-823), the court’s subsequent
inquiry and its offering defendant an opportunity to move to withdraw
his plea were sufficient to ensure that the plea was voluntary (see
People v Brown, 305 AD2d 1068, 1069, lv denied 100 NY2d 579; see also
People v Larry B., 277 AD2d 989, 989, lv denied 96 NY2d 864; People v
Greer, 277 AD2d 1051, 1051, lv denied 96 NY2d 829).

     Defendant’s contention that the court erred in failing to order
an examination pursuant to CPL 730.30 is also not preserved for our
review (see People v Rought, 90 AD3d 1247, 1248, lv denied 18 NY3d
962). In any event, that contention is without merit inasmuch as
“[t]here is no indication in the record that defendant was mentally
incompetent at the time he entered his guilty plea or at sentencing”
(People v Carbonel, 296 AD2d 858, 858 [internal quotation marks
omitted]).

     Defendant further contends that his sentence is unduly harsh and
severe; however, we perceive no basis in the record to modify the
sentence as a matter of discretion in the interest of justice (see CPL
470.15 [6] [b]).

     Finally, defendant’s contention that he was denied effective
assistance of counsel does not survive his guilty plea as defendant
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                                                         KA 16-01027

made only a conclusory contention that he would not have pleaded
guilty, but for the alleged errors of defense counsel, for the first
time in his reply brief (see People v McDonald, 1 NY3d 109, 115; see
also People v Sponburgh, 61 AD3d 1415, 1416, lv denied 12 NY3d 929).
Additionally, defendant “receive[d] an advantageous plea and nothing
in the record casts doubt on the apparent effectiveness of counsel”
(Brown, 305 AD2d at 1069). Defendant’s remaining contentions are
without merit.




Entered:   February 10, 2017                   Frances E. Cafarell
                                               Clerk of the Court
