                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 19, 2017                   106457
________________________________

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

RYAN BRICE, Also Known as D,
                    Appellant.
________________________________


Calendar Date:   November 22, 2016

Before:   Garry, J.P., Egan Jr., Rose, Clark and Mulvey, JJ.

                             __________


      Jeffrey L. Zimring, Albany, for appellant, and appellant
pro se.

      P. David Soares, District Attorney, Albany (Michael C.
Wetmore of counsel), for respondent.

                             __________


Garry, J.P.

      Appeal from a judgment of the Supreme Court (Breslin, J.),
rendered January 17, 2014 in Albany County, convicting defendant
upon his plea of guilty of the crime of criminal possession of a
weapon in the second degree.

      Defendant sold a firearm loaded with .223 caliber
ammunition to a third party on the evening of August 30, 2012.
Thereafter, he was charged in a two-count indictment with
criminal possession of a weapon in the second degree and criminal
sale of a firearm in the third degree. Defendant moved to
dismiss the indictment on multiple grounds, and Supreme Court
denied the motion. Ultimately, in August 2013, defendant
accepted a plea bargain by which he pleaded guilty to criminal
                              -2-                106457

possession of a weapon in the second degree, in violation of
Penal Law § 265.03, in full satisfaction of the indictment. The
plea agreement included a waiver of the right to appeal, subject
to specified reservations. The court sentenced defendant in
accord with the agreement to a prison term of eight years with
three years of postrelease supervision. Defendant appeals.

      Initially, we find that defendant's waiver of appeal was
valid. The record reveals that Supreme Court adequately
conveyed, and defendant understood, that his right to appeal was
separate and distinct from the other trial rights forfeited by
his guilty plea (see People v Lopez, 6 NY3d 248, 256-257 [2006];
People v Handly, 122 AD3d 1007, 1008 [2014]). Contrary to
defendant's claim, the issues he now seeks to raise were not
among the specific matters he reserved. In the course of his
plea, defendant reserved the right to challenge the underlying
statute on the ground of federal preemption, asserting that the
statute was thus unconstitutional, and further reserved the issue
whether he was an "authorized person" within the meaning of Penal
Law § 265.11. Upon appeal, he now asserts that he also retained
the right to appeal the issue of whether the gun that he
possessed and sold met the statutory definition of a "firearm."
This is belied by the record.

      To the extent that defendant may be asserting that his
guilty plea was not a knowing choice, this is also unsupported by
the record. Prior to accepting defendant's plea, Supreme Court
fully outlined the terms of the plea agreement, without
objection. Criminal possession of a weapon in the second degree
requires defendant's possession of a loaded "firearm," which may
be defined as an "assault weapon" (Penal Law §§ 265.03 [3];
265.00 [3] [e]). During the plea colloquy, defendant admitted to
his possession of an "assault weapon with .223 caliber
ammunition." As stated above, defendant specifically reserved
certain issues for appeal. The court carefully described the
various rights that defendant was forfeiting and permitted a
pause in the proceedings for defendant to confer with his
attorney. The record does not support finding that defendant was
confused in any manner as to the terms of his plea agreement or
his appeal waiver. Instead, upon review, we find that his guilty
plea was voluntary and knowing, and we thus uphold it (see People
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v Conceicao, 26 NY3d 375, 382-383 [2015]; People v Charleston,
142 AD3d 1248, 1248 [2016]; People v Khan, 139 AD3d 1261, 1263
[2016], lvs denied 28 NY3d 932, 934 [2016]).

      Finally, we reject defendant's assertion that his challenge
presents a jurisdictional defect in the indictment. A
jurisdictional defect "is not subject to the preservation rule
and may not be waived" (People v Pierce, 14 NY3d 564, 570 n 2
[2010]). However, 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];
see People v Simmons, 103 AD3d 1027, 1029 [2013], lv denied 21
NY3d 1009 [2013]). Defendant's challenge here, although cloaked
as a jurisdictional defect, is in fact addressed to the
evidentiary sufficiency of the indictment. It was thus forfeited
by his guilty plea (see People v Plunkett, 19 NY3d 400, 405-406
[2012]; People v Hansen, 95 NY2d 227, 230-232 [2000]; People v
Cunningham, 229 AD2d 669, 669-670 [1996]).

     Egan Jr., Rose, Clark and Mulvey, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
