SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1426 

KA 11-01396 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

RONALD D. ROSSBOROUGH, DEFENDANT-APPELLANT. 

 

ROSEMARIE RICHARDS, GILBERTSVILLE, FOR DEFENDANT-APPELLANT. 

BROOKS BAKER, DISTRICT ATTORNEY, BATH (JAMES P. MILLER OF COUNSEL),

FOR RESPONDENT. 

 

Appeal from a judgment of the Steuben County Court (Joseph W.

Latham, J.), rendered February 2, 2011. The judgment convicted

defendant, upon his plea of guilty, of forgery in the second degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: On appeal from a judgment convicting him upon a plea

of guilty of forgery in the second degree (Penal Law § 170.10 [1]),

defendant contends that the superior court information (SCI) and

waiver of indictment were jurisdictionally defective because they

contain discrepancies in the date and location of the crime charged

therein. We reject that contention. Although defendant is correct

that a “valid and sufficient accusatory instrument is a nonwaivable

jurisdictional prerequisite to a criminal prosecution” (People v

Harper, 37 NY2d 96, 99), an accusatory instrument is jurisdictionally

defective “only if it does not effectively charge the defendant with

the commission of a particular crime” (People v Quamina, 207 AD2d

1030, 1030, lv denied 84 NY2d 1014, quoting People v Iannone, 45 NY2d

589, 600). In the case relied upon by defendant, People v Roe (191

AD2d 844, 845), the court determined that the SCI was jurisdictionally

defective because it charged defendant with a nonexistent crime. 

Here, however, the SCI effectively charged defendant with the

commission of a particular crime, i.e., forgery in the second degree

in violation of Penal Law § 170.10 (1). Thus, any mistake in the SCI

“with respect to date, time or place is a technical defect rather than

a jurisdictional defect vital to the sufficiency of the [SCI] or the

guilty plea entered thereto” (People v Cox, 275 AD2d 924, 925, lv

denied 95 NY2d 962 [internal quotation marks omitted]; see People v

Dudley, 28 AD3d 1182, 1183, lv denied 7 NY3d 788; People v Kepple, 98

AD2d 783, 783). Because the SCI is not jurisdictionally defective,

defendant’s challenges to the SCI are forfeited by defendant’s plea of

guilty (Cox, 275 AD2d at 925), and in any event the valid waiver of
-2- 1426 

KA 11-01396 

the right to appeal encompasses those nonjurisdictional challenges

(see People v Nichols, 32 AD3d 1316, 1317, lv denied 8 NY3d 848,

reconsideration denied 8 NY3d 988). Contrary to the further

contention of defendant, the record establishes that he freely and

voluntarily waived indictment and consented to be prosecuted by way of

an SCI (see CPL 195.10, 195.20; People v Burney, 93 AD3d 1334, 1334).

In addition, we reject the contention of defendant that his

guilty plea was not knowing, voluntary, or intelligent. Although his

contention survives his valid waiver of the right to appeal, defendant

did not move to withdraw the plea or to vacate the judgment of

conviction on that ground and thus failed to preserve that contention

for our review (see People v Russell, 55 AD3d 1314, 1314-1315, lv

denied 11 NY3d 930; People v Harrison, 4 AD3d 825, 826, lv denied 2

NY3d 740).

Finally, we conclude that County Court did not err in sentencing

defendant as a second felony offender. Whether defendant committed

the crime at issue on January 6, 2010 or January 30, 2010 is of no

moment inasmuch as, under either date, only nine years elapsed between

the date of sentencing upon his prior conviction, i.e., January 30,

2001, and the date of the instant offense (see Penal Law § 70.06 [1]

[b] [iv]). Thus, there is no basis to disturb defendant’s sentence. 

Entered: December 28, 2012 Frances E. Cafarell

Clerk of the Court