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