The People, Respondent,v.Steven Myers, Appellant.BriefN.Y.June 6, 2018To Be Argued By NICOLE K. INTSCHERT, ESQ. (TIME REQUESTED: 15 MINUTES) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, vs. STEVEN MYERS, Defendant-Appellant. APL-2017-00157 Information No. 1-2012-0715-1 Index No. 2012-0834 Appellate Division Docket No. KA 14-01826 RESPONDENT’S BRIEF WILLIAM J. FITZPATRICK, ESQ. Onondaga County District Attorney Attorney for Respondent Criminal Courthouse, 4th Floor 505 South State Street Syracuse, NY 13202 Tel: (315)435-2470 JAMES P. MAXWELL, ESQ. Chief Assistant District Attorney NICOLE K. INTSCHERT, ESQ. Assistant District Attorney Of Counsel DATE COMPLETED: December 18, 2017 TABLE OF CONTENTS PAGE iTABLE OF AUTHORITIES QUESTIONS PRESENTED 1 PRELIMINARY STATEMENT 2 STATEMENT OF FACTS 3 Defendant’s Guilty Plea Syracuse Community Treatment Court, Sentencing 4 7 9 POINT I 10DEFENDANT PROPERLY WAIVED INDICTMENT The Record does not support defendant’s claim that he did not sign the waiver of indictment in open court A. 12 B. Defendant’s unpreserved and forfeited claim that he did not make a knowing, voluntary and intelligent waiver of indictment is without merit 16 POINT II THERE WAS NO COLLOQUY REGARDING DEFENDANT’S WAIVER OF THE RIGHT TO APPEAL 20 CONCLUSION 21 WORD COUNT 22 TABLE OF AUTHORITIES PAGE CASES People v Barber. 280 AD2d 691 (3rd Dept 2001), iv denied 96 NY2d 825 (2001) 13 People v Boston. 75 NY2d 585 (1990). 11 People v. Brown. 81 AD3d 499 (1st Dept 2011), !v denied 17 NY3d 792 (2011) 12 People v Callahan, 80 NY2d 273 (1992) People v Chad S.. 237 AD2d 986 (4th Dept 1997), iv denied 90 NY2d 856 (1997) People v Davis. 84 AD3d 1645 (3rd Dept 2011), lv denied 17NY3d815 (2011) 21 13 3, 15 People v Dominique, 90 NY2d 880 (1997) People v Donnelly. 23 AD3d 921 (3rd Dept 2005) AD3d _, 2017 NY Slip Op 08684 (2nd Dept 2017). People v Gonzalez, 299 AD2d 581 (3rd Dept 2002) People v Gramola, 102 AD3d 810 (2nd Dept 2013), lv denied 20 NY3d 0199 (2013) People v Harris, 267 AD2d 1008 (4th Dept 1999) People v Harris. 61 NY2d 9 (1983) People v Hill. 269 AD2d 404 (2nd Dept 2000), lvs denied 94 NY2d 920 (2000) and 95 NY2d 798 (2000) 13 17 People v Eulo, 17 16 15 11 21 14 i People v Johnson, 51 NY2d 986 (1980). 12 People v Kinchen. 60 NY2d 772 (1983) People v Long. 273 AD2d 67 (1st Dept 2000) People v McLean, 15 NY3d 117 (2010) People v Myers. 145 AD3d 1596 (4th Dept 2016). 12 11, 16 13 3, 15, 16 People v Myers. 29 NY3d 1093 (2017) People v Person, 256 AD2d 1232 (4th Dept 1998), !v denied 93 NY2d 856 (1999) 3 14 People v Pierce. 14 NY3d 564 (2010) People v Powers, 302 AD2d 685 (3rd Dept 2003) People v Rivera. 24 AD3d 367 (1st Dept 2005) People v Rossborough. 101 AD3d 1775 (4th Dept 2012), rears denied 105 AD3d 1467 (4th Dept 2013) People v Sabin. 73 AD3d 1390 (3rd Dept 2010), lv denied 15 NY3d 809 (2010) People v Schultz. 258 AD2d 879 (4th Dept 1999), ]v denied 93 NY2d 929 (1999) People v Torres, 265 AD2d 226 (1st Dept 1996), !v denied 94 NY2d 886 (2000) 11, 16 11, 16 10 12 14 17 13 People v Trueluck, 88 NY2d 546 (1996) People v Valenti. 264 AD2d 904 (3rd Dept 1999), !v denied 94 NY2d 926 (2000) 10, 11 14 People v Verrone. 266 AD2d 16 (1st Dept 1999), appeal withdrawn 94 NY2d 868 (1999) 11 ii People v Waid. 26 AD3d 734 (4th Dept 2006), ]y denied 6 NY3d 839 (2006) People v Wicks. 42 AD3d 585 (3rd Dept 2007). 11, 15, 19 15 People v Yunga. 122 AD3d 951 (2nd Dept 2014), lv denied 25 NY3d 993 (2015) 15 STATUTES CPL 195.10 19 CPL 195.20, 3,19 CPL 195.30. 11 Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 195.30 16 iii COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, vs. STEVEN MYERS, Defendant-Appellant. APL-2017-00157 Information No. 1-2012-0715-1 Index No. 2012-0834 Appellate Division Docket No. KA 14-01826 THE PEOPLE’S BRIEF QUESTIONS PRESENTED 1. DID DEFENDANT VALIDLY WAIVE HIS RIGHT TO BE PROSECUTED BY INDICTMENT? Defendant executed a written waiver acknowledging that he was giving up his right to be prosecuted by indictment filed by the Grand Jury of Onondaga County and consenting to be prosecuted by a Superior Court Information. The Appellate Division, Fourth Department affirmed. 2. DID DEFENDANT WAIVE HIS RIGHT TO APPEAL? Defendant waived his right to appeal in writing. 1 PRELIMINARY STATEMENT Steven Myers (defendant) appeals from the Order of the Appellate Division, Fourth Department, dated December 23, 2016, unanimously affirming the judgement convicting defendant of burglary in the third degree (Record [R.] at 4- 5). Defendant pleaded guilty to burglary in the third degree on July 9, 2012 in Supreme Court, Onondaga County (Brunetti, Acting Justice). As part of the plea agreement, defendant agreed to enter Syracuse Community Treatment Court (“SCTC”), and upon successful completion of its drug court program, he would have been permitted to withdraw his guilty plea, enter a guilty plea to a misdemeanor, and receive a conditional discharge. If defendant were to fail at SCTC, he faced a maximum possible sentence of 214 to 7 years of incarceration. On March 25, 2014, following defendant’s multiple violations of the drug court program, Acting County Court Judge James H. Cecile sentenced defendant to an indeterminate term of 2lA to 7 years’ incarceration for burglary in the third degree. Defendant was also sentenced at that time to a concurrent term of one year of incarceration for a probation violation associated with a separate driving while intoxicated (DWI) conviction. On December 23, 2016, the Appellate Division, Fourth Department “reject[ed] defendant’s contentions that his waiver of indictment is invalid because there was no colloquy on that subject and no evidence in the record that his waiver 2 executed in ‘open court’ ” (R. 4; People v Myers, 145 AD3d 1596, 1597 [4thwas Dept 2016], quoting CPL 195.20). The court concluded that “[a] colloquy is not required in connection with a waiver of indictment,” and that “ ‘even [when] the plea minutes are silent,’ the ‘open court’ execution requirement of CPL 195.20 is satisfied where, as here, the court’s order approving the indictment waiver ‘expressly found that defendant had executed the waiver in open court’ ” (R. 4-5; People v Myers. 145 AD3d at 1597, quoting People v Davis, 84 AD3d 1645, 1646 [3rd Dept 2011], !Y denied 17 NY3d 815 [2011]; additional citations omitted). Senior Associate Court of Appeals Judge Jenny Rivera granted defendant’s application for permission to appeal on July 28, 2017 (R. 3; People v Myers. 29 NY3d 1093 [2017]). The People received three copies of defendant’s brief and the stipulated Record on November 9, 2017. Defendant was released to parole supervision on November 23, 2015, and was discharged from parole on May 23, 2017 (see http://nysdoccslookup.doccs.ny.gov/ [DIN 14-B-1044]). STATEMENT OF FACTS On July 9, 2012, defendant waived his right to have his case presented to an Onondaga County Grand Jury, and was charged under Superior Court Information (SCI) No. 1-2012-0715-1 with burglary in the third degree (R. 16 [plea minutes]; see R. 11-13 [written waiver of indictment], 13a [SCI]). 3 This charge arose from an incident in which defendant knowingly entered and remained unlawfully in a building with intent to commit a crime on or about April 19, 2012 (R. 13a, 18). Defendant pleaded guilty to burglary in the third degree as charged in the SCI (R. 13a, 18). In accordance with the terms of his plea, defendant then signed a contract and entered into SCTC (R. 26-27; see R. 32- 34 [copy of SCTC contract]), but he did not successfully complete the drug court program (R. 101). Following multiple violations of the SCTC contract, defendant was sentenced on March 25, 2014, to 2lA to 7 years in state prison for burglary in the third degree and to one year of local incarceration for a violation of probation in regard to a previous DWI charge (R. 102). Defendant’s Guilty Plea On July 9, 2012, the People and defense counsel appeared before Acting Onondaga County Supreme Court Justice John J. Brunetti (R. 15-23). They had a discussion at the bench, off the record, and during that time, a deputy escorted defendant into the courtroom (R. 16). Defendant then immediately conferred with his attorney (R. 16). The court stated that defendant’s case would be recalled, “but [defendant] will stay at the lectern to meet with [his attorney] on the waiver form” (R. 16). Once defendant’s case was recalled, the following occurred: . . . The application for grand jury waiverTHE COURT: 4 meets the requirements of the statute so I’m going to sign the order approving the waiver and order the information filed. [Defense counsel], do you acknowledge receipt and waive a reading. DEFENSE COUNSEL: Yes we do, Your Honor (R. 16-17). The court then took defendant’s plea (R. 17). First, the court explained the terms of the plea agreement as follows: THE COURT: [Defendant], a discussion has been had between myself, your lawyer, and the district attorney’s office concerning the possible resolution of charges pending against you. The first part is that you would be pleading guilty to a Class D nonviolent felony of Burglary in the Third Degree. The worse [sic] you could receive upon conviction for such an offense is a seven year jail term with a minimum of two and one-third. That is not mandatory, however. Lesser sentences both at the state and local level would be legally possible. If you complete Community Treatment Court, however, you would be guaranteed a misdemeanor result and a conditional discharge. There is going to be a restitution order of some type in the range between 2 and $300. And those would be the consequences of your plea. If you fail out of Community Treatment Court, then the judge can sentence you on the felony level charge and technically up to two and a third years to seven years. Those would be the terms of the plea bargain (R. 17-18). 5 Defendant agreed that he understood those terms (R. 18). He then pleaded guilty to burglary in the third degree, and he admitted that “on or about April 19th, 2012, in the Town of Salina, County of Onondaga, that [he] knowingly entered or remained unlawfully in a building at 604 Old Liverpool Road with the intent to commit a crime once therein” (R. 18). Defendant confirmed that no other statements, promises, or threats had been made to influence his decision to plead guilty (R. 18). He denied any physical or mental problems, or taking any drugs, medicine or alcohol that would affect his ability to understand his actions (R. 19). Defendant acknowledged that he could read and write English, and that he had had sufficient time to discuss the case with his attorney (P. 19). Defendant then indicated that he understood that a plea of guilty is equivalent to a conviction after trial (R. 20-21). He indicated that he understood that by pleading guilty, he was giving up the right to a trial by jury, his right to require the People to prove his guilt beyond a reasonable doubt and to cross- examine their witnesses, and his right to remain silent (R. 20). Defendant mistakenly indicated that he was not on parole or probation (R. 19). A deputy brought to the court’s attention that defendant was actually on probation imposed by a Syracuse City Court Judge, but defendant clarified to the court that because a probation violation had been filed, he believed that meant he 6 was no longer on probation (R. 21). The court noted its concern that the Syracuse City Court Judge could “give [defendant] a year in jail for being convicted,” but defendant’s attorney assured the court that they were comfortable with the consequences of the plea (R. 21). The court then stated on the record that it found defendant’s plea to be “a voluntary plea with a factual basis,” and indicated that defendant’s case would be forwarded to SCTC (R. 22). Syracuse Community Treatment Court On July 17, 2012, defendant appeared in SCTC for the first time (R. 25). The court reminded defendant of the possible sentencing consequences of failing at SCTC, which included a possible term of imprisonment of 2lA to 7 years (R. 26). Defendant acknowledged that he had reviewed the drug court contract with his attorney and understood the terms of the contract (R. 26-27; see R. 32-34). The court then addressed the violation of probation in relation to a DWI conviction and sentencing from December 19, 2011, finding that defendant admitted a violation of his probation by virtue of entering his plea to the burglary (R. 27-28). Lastly, the court directed that defendant go directly from jail to an inpatient treatment facility, to be followed by treatment at a halfway house (R. 29-30). On December 11, 2012, after positive reports on October 9, 2012 (R. 45) and November 13, 2012 (R. 48), the court learned that defendant was fired from “Jobs 7 Plus” and removed from the halfway house at which he had been living (R. 51). The court decided to refrain from sanctioning defendant at that time (R. 51). Defendant continued to have positive reports until April 9, 2013 (R. 60). Defendant missed one of his weekly reports to the Onondaga County Probation Department, claiming that he was working when he missed the meeting (R. 60). The court again refrained from sanctioning him (R. 61). On August 6, 2013, defendant was taken into custody by the court after testing positive for using crack cocaine (R. 71). The court further learned that defendant was also drinking alcohol (R. 71). On August 20, 2013, defendant was released from custody and given a last chance warning (R. 74). The court warned that if defendant were to mess up again he would be facing the violation of probation and the felony conviction that he pleaded to, and any additional violations would lead to defendant going to state prison (R. 74). On September 5, 2013, defendant failed to appear before the court (R. 77). Defendant had tested positive for using cocaine the previous day (R. 77). The court issued an arrest warrant for defendant on his felony conviction for burglary and a bench warrant for his violation of probation (R. 77). On November 26, 2013, after defendant had served three months in jail, the court established a new plan, including outpatient treatment, in an effort to keep defendant out of state prison (R. 84). The court gave defendant another last 8 chance warning, telling defendant that if he again tested positive or failed to meet his requirements, he would be sentenced for his felony conviction (R. 84). Defendant told the court that he had completed an anger management class and obtained his GED while incarcerated (R. 85). He expressed to the court that he wanted to get his life together (R. 86). The court explained that this was the last chance defendant would have (R. 86). On December 10, 2013, defendant appeared before court and relayed that he had not yet been able to start treatment because of Medicaid issues, and confirmed that he was not present during a home visit by his probation officer due to health issues that required hospitalization (R. 89). On January 14, 2014, defendant failed to appear at SCTC and a bench warrant was issued (R. 93). On February 13, 2014, the court held defendant with no bail on the warrant (R. 95). The court also ordered an updated presentence report (R. 95). Defendant claimed that the only reason he had failed was because his probation officer was “being very mean” and not “giving [him] a chance” (R. 95). Sentencing On March 25, 2014, following his numerous violations of the terms of his SCTC contract, the court sentenced defendant to an indeterminate term of 2lA to 7 years in prison (R. 102). 9 POINT I DEFENDANT PROPERLY WAIVED INDICTMENT Defendant asks in Point I of his brief (at 10-22) that this Court vacate his waiver of indictment. This Court should not grant defendant any relief. Defendant claims that the waiver of indictment did not comply with the statutory requirements under the Criminal Procedure Law because there is no record evidence that defendant executed the waiver in open court (defendant’s brief at 13-14). Defendant further claims that his waiver of the indictment was invalid because, even if he signed the waiver, there was no colloquy evincing that he did so knowingly, voluntarily, and intelligently (defendant’s brief at 14-22). Defendant’s claims are partially unpreserved, and they are without merit. This Court should affirm the holding of the Appellate Division, Fourth Department, that the waiver was valid. As this Court is aware, “a waiver of indictment is available ‘only within the express authorization of the governing constitutional and statutory exception’ ” (People v Rivera. 24 AD3d 367, 371 [1st Dept 2005], quoting People v Trueluck, 88 NY2d 546, 549 [1996]). A defendant may waive indictment and consent to be prosecuted by a superior court information where the local criminal court has held the defendant for the action of a grand jury, the defendant is not charged with a class A felony, and the District Attorney consents to the waiver of indictment (CPL 10 195.10 [1]; People v Trueluck. 88 NY2d 546, 549 [1996]). The procedure whereby a defendant effects a waiver of indictment is controlled by Criminal Procedure Law § 195.20, which requires, inter alia, that a waiver of indictment be in writing and list the specific rights that defendant is giving up, be signed by the defendant in open court in the presence of his or her attorney, and be consented to by the District Attorney as evidenced by his or her signature on the waiver. Where a court finds that a waiver of indictment complies with the requirements of CPL 195.10 and 195.20, the court “shall approve the waiver” (CPL 195.30). Although defendant wants this Court to hold that an “appellant is not required to preserve any challenge to the validity of the Superior Court Information at the trial court level” (defendant’s brief at 10 [emphasis added]), only jurisdictional claims pertaining to compliance with the constitutional and statutory procedures for waiving indictment may be reviewed without preservation (see People v Pierce. 14 NY3d 564, 570 n 2 [2010]; People v Boston. 75 NY2d 585, 589 n [1990]; People v Waid. 26 AD3d 734, 735 [4th Dept 2006], ]v denied 6 NY3d 839 [2006]; People v Harris. 267 AD2d 1008, 1009 [4th Dept 1999]). Non- jurisdictional claims regarding a waiver of indictment need to be preserved, and they are foreclosed by the entry of a guilty plea (see People v Powers, 302 AD2d 685, 685 [3rd Dept 2003]; People v Long, 273 AD2d 67, 67 [1st Dept 2000]; People v Verrone, 266 AD2d 16, 18 [1st Dept 1999], appeal withdrawn 94 NY2d 868 r19991; see also People v Rossborough. 101 AD3d 1775, 1775 [4th Dept 2012], rearg denied 105 AD3d 1467 [4th Dept 2013] [“Because the SCI is not jurisdictionally defective, defendant’s challenges to the SCI are forfeited by defendant’s plea of guilty”]). Accordingly, defendant’s jurisdictional claim about the execution of the waiver in open court does not require preservation; however, his second claim, regarding the voluntariness of the waiver, is non-jurisdictional, and, were it not forfeited by defendant’s guilty plea, it would need to be preserved. A. The Record does not support defendant’s claim that he did not sign the waiver of indictment in open court. Turning first to the jurisdictional claim, there is no proof on this record to support the position that defendant’s waiver fails to comply with state constitutional requirements, or with the statutory requirements of CPL Article 195. Defendant has not demonstrated a sufficient record on which the Court might conclude that his waiver of indictment is invalid (see People v Milton, 21 NY3d 133, 137 [2013] [“(T)he record does not demonstrate this, and the burden of making a record sufficient to permit appellate review is on the party seeking it”]; People v Johnson. 51 NY2d 986, 987 [1980]; see also People v Brown, 81 AD3d 499, 500 r 1st Dept 20111. lv denied 17NY3d792 [2011], citing People v Kinchen, 60 NY2d 772, 773-774 [1983]). “[T]he lack of an adequate record bars review on direct appeal not only where vital evidence is plainly absent . . . but wherever the record falls short of establishing conclusively the merit of the defendant’s claim” 12 (People v McLean. 15 NY3d 117, 121 [2010]). Defendant may not “simply rely on a void in the record” to prove that his waiver of indictment was not signed in open court (People v Barber. 280 AD2d 691, 693 [3rd Dept 2001], ]y denied 96 NY2d 825 [2001]; see People v Chad S.. 237 AD2d 986, 986 [4th Dept 1997], ]v denied 90 NY2d 856 [1997]). To the contrary, “[i]n the absence of any specific proof, the law presumes that the statutory requirements were satisfied” (People v Dominique, 90 NY2d 880, 881 [1997]; see People v Barber, 280 AD2d at 693 [“According the judicial proceedings a presumption of regularity . . . and in view of defendant’s failure to submit proof to the contrary, we find that the waiver of indictment was valid, (and) no violation of CPL 195.10 was established”] [internal citations omitted]; People v Torres, 265 AD2d 226, 227 [1st Dept 1999], ]v denied 94 NY2d 886 [2000] [“In the absence of specific proof to the contrary, the law presumes that the requirements for a valid waiver of indictment (see, CPL 195.20) were satisfied”] [internal citation omitted]). Additionally, a fair reading of the record shows that defendant executed the written waiver in open court on July 9, 2012. When defendant appeared in court, he immediately conferred with his attorney (R. 16). The court then paused the proceeding, but directed defendant to stay at the lectern with his attorney so they could meet “on the waiver form” (R. 16). The proceedings in defendant’s case resumed when defense counsel was ready (R. 16). The court then stated on the 13 record that the waiver satisfied the statutory requirements, and that it would sign an order approving the waiver (R. 16). By keeping defendant and defense counsel at the lectern, the court assured that defendant signed the waiver in open court. The court’s subsequent approval of defendant’s waiver of indictment “indicated that the waiver fully complied with the requirements of CPL 195.10 and 195.20” (People v Sabin. 73 AD3d 1390, 1391[3rd Dept 2010], lv denied 15 NY3d 809 [2010] [internal citations omitted]; see People v Hill 269 Ap2d 404, 405 [2nd Dept 2000], lvs denied 94 NY2d 920 [2000] and 95 NY2d 798 [2000] [“The waiver of indictment was also signed by . . . the court, which approved the waiver after finding that it complied with CPL 195.10 and 195.20”]; People v Valenti. 264 AD2d 904, 905 [3rd Dept 1999] [“the record of the plea proceeding reflects County Court’s satisfaction with the waivers”]; People v Person. 256 AD2d 1232, 1232 [4th Dept 1998], ]v denied 93 NY2d 856 [1999]). More to the point, the court stated on the record that the “grand jury waiver meets the requirements of the statute” (R. 16), and the court’s order expressly stated that defendant “appeared in open court with his attorney” and that he “executed a waiver ... in open court in the presence of his attorney” (R. 14). As properly emphasized by the Appellate Division, Fourth Department, in a situation such as the one before this Court, even where the plea minutes are silent in regard to an element for a valid waiver of indictment, where the order of the court approving 14 the waiver definitively states that all of the requirements have been fulfilled, the waiver and attendant proceedings should be found to have satisfied CPL Article 195 (People v Myers. 145 AD3d at 1597, quoting People v Davis, 84 AD3d 1645, 1646 f3rd Dept 20111, lv denied 17NY3d815 [2011] [additional citations omitted]; see People v Wicks. 42 AD3d 585, 585 [3rd Dept 2007] [“Although the plea minutes are silent with regard to defendant’s signing of the waiver, County Court’s order approving the waiver indicates that defendant executed it in open court in the presence of his attorney”] [internal citations omitted]; see also People v Valenti, 264 AD2d 904, 905 [3rd Dept 1999], Jv denied 94 NY2d 926 [2000] [“Those waivers, signed by defendant, expressly acknowledged that defendant was held for the action of a Grand Jury; such an instrument is itself evidence of a valid waiver”] [internal citations omitted]). Accordingly, “the explicit statutory prerequisites for the waiver of indictment procedure were met . . . [and] the waiver of indictment and SCI . . . not jurisdictionally defective” (People v Waid. 26 AD3d 734, 735 [4th Dept 2006], ]y denied 6 NY3d 839 r20061: see People v Yunga. 122 AD3d951 951 [2nd Dept 20141, lv denied 25 NY3d 993 [20151; People v Gramola. 102 AD3d810, 810 [2nd Dept 2013], lv denied 20 NY3d 1099 [2013]). Inasmuch as the indictment were waiver complied with the statutory requirements, the court was without discretion to do anything other than approve the waiver (People v Waid, 26 AD3d at 735, 15 citing Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 195.30 [“The record of the plea proceeding establishes that the court was satisfied with the sufficiency of the waiver of indictment, and where, as here, all the statutory requirements for waiving indictment have been met, the court lacks discretion to withhold approval of the waiver”]). B. Defendant’s unpreserved and forfeited claim that he did not make a knowing, voluntary and intelligent waiver of indictment is without merit. Defendant further claims that there was an insufficient allocution from which a reviewing court could ascertain that defendant’s waiver of indictment was knowing, voluntary and intelligent. That claim does not pertain to a jurisdictional defect in the waiver of indictment by virtue of noncompliance with constitutional or statutory requirements. Instead, it is a non-jurisdictional claim that is raised for the first time on appeal, is unpreserved, and is forfeited by his guilty plea (see People v Powers, 302 AD2d at 685; People v Long. 273 AD2d at 67). Inasmuch as this claim is not properly before this Court, it should not review it. In any event, defendant’s claim is without merit. As recognized by the Appellate Division, Fourth Department, there has not been any colloquy requirement imposed for a valid waiver of indictment (People v Myers, 145 AD3d at 1597, citing People v Pierce. 14 NY3d 564, 567-568 [2010]; see People v Gonzalez, 299 AD2d 581, 582 [3rd Dept 2002] [“No specific litany is 16 required prior to the acceptance by County Court of a defendant’s waivers”] [citation omitted]). Instead, courts have placed emphasis on strict compliance with the statutory requirements under CPL Article 195, and particularly the requirement that a defendant’s waiver be in writing (see People v Eulo, _ AD3d _, 2017 NY Slip Op 08684 [2nd Dept 2017] [reversing the judgment and dismissing the SCI where, although transcript of proceeding indicated that defendant signed a document denoted as the waiver in court, the record did not contain a waiver of indictment signed by defendant]; People v Donnelly, 23 AD3d 921, 921-922 [3rd Dept 2005] [reversing the judgment and vacating the plea where “the record does not support the conclusion that the waiver was-as constitutionally and statutorily mandated -‘signed by the defendant in open court in the presence of his [or her] counsel’ ”] [citations omitted]; see also People v Schultz, 258 AD2d 879, 879 [4th Dept 1999], ]v denied 93 NY2d 929 [1999] [“The court then properly elicited defendant’s waiver of indictment in writing”] [internal citations omitted]). As already discussed in this brief, the execution of a written waiver in open court in the presence of counsel and with the signed consent of the prosecutor complies with the constitutional and statutory requirements. Moreover, the plea minutes of July 9, 2012 and the written documentation executed that day support the conclusion that defendant knowingly and voluntarily waived indictment. The 17 written waiver itself memorialized defendant’s understanding of the rights he was giving up, including the right to be prosecuted by indictment and the right to waive immunity and testify before a grand jury (R. 11). The waiver also indicates that defendant was making the waiver voluntarily, without being threatened or forced, and that he had discussed the facts of his case and the meaning of the waiver with his attorney (R. 11). He also voluntarily waived his right to appeal and waived having the court explain on the significance of the waiver of the right to appeal (R. 11). Furthermore, defendant’s attorney swore in writing that he had discussed with defendant both the facts of the case and “the meaning of the waiver,” and that the attorney was satisfied that defendant understood the waiver and its consequences (R. 13). The waiver included a request by defendant that the court approve the waiver (R. 12), which the court did by both stating on the record that it sufficed (R. 16), and executing an order to that effect (R. 14). That order indicated that defendant executed the waiver of indictment in open court in the presence of counsel (R. 14). The document also indicated that the court was satisfied that the waiver conformed to the requirements of CPL 195.10 and 195.20, and that defendant understood the waiver and its consequences (R. 14). The executed documents and the minutes of the court proceeding show that defendant was given time to confer with his attorney “on the waiver,” and that 18 defendant knowingly, intelligently, and voluntarily waived indictment. That there was no oral reiteration of the contents of the written waiver documents should be of no import. CPL 195.30 instructs that, “[i]f satisfied that the waiver [of indictment] complies with such provisions [of CPL 195.10 and 195.20], the court shall approve the waiver and execute a written order to that effect” (emphasis added). A court has no discretion to withhold approval of a waiver of indictment so long as the statutory requirements are met (see People v Waid, 26 AD3d at 735). Notably, none of the other waivers of rights to which defendant tries to analogize the waiver of indictment (see defendant’s brief at 14-21) has a similar automatic statutory mechanism. Only the waiver of the right to a trial by jury and certain aspects of entering a guilty plea are controlled by statute, and no other statute absolutely compels the acceptance of these waivers. CPL 320.10, for example, regarding the waiver of a right to a jury trial, gives a court discretion to approve the jury trial waiver to the extent that the court may deny it upon a determination that “the defendant is not fully aware of the consequences of the choice he is making.” The very wording of CPL 320.10 calls for a two-step process not found in CPL Article 195. The provisions of CPL Article 220, governing plea proceedings, unlike CPL Article 195, do not mandate the use of a written instrument as the vehicle for a court accepting the entry of a plea and the corresponding forfeiture of certain rights. 19 The remaining waivers of rights are creatures of case law. The waiver of a right to appeal is not controlled by statute, nor is the right to forego counsel and proceed pro se. Accordingly, none of these waivers is automatically accepted upon compliance with statutory requirements, as there are none to follow. Thus, this Court should not vacate defendant’s waiver of indictment. This Court should affirm the holding of the Appellate Division, Fourth Department, that defendant validly waived indictment by complying with the relevant provisions of the New York State Constitution and CPL Article 195. POINT II THERE WAS NO COLLOQUY REGARDING DEFENDANT’S WAIVER OF THE RIGHT TO APPEAL Defendant claims in Point II of his brief (at 23-26) that defendant’s written waiver of his right to appeal was insufficient because there was no colloquy between the court and defendant. Defendant executed a waiver of indictment that included a waiver of appeal and a waiver of the right to have the court explain to him the significance of that waiver (R. 11). Moreover, defendant also executed a drug court contract in which he agreed that he had no right to appeal from being dismissed from drug court (R. 34). The People acknowledge that this Court has found a written waiver insufficient when not accompanied with a discussion of the 20 waiver on the record (see People v Callahan. 80 NY2d 273, 283 [1992], citing People v Harris. 61 NY2d 9 [1983]). CONCLUSION The People respectfully ask this Court to affirm defendant’s conviction. Respectfully submitted, WILLIAM J. FITZPATRICK, ESQ. Onondaga County District Attorney J\ju2x JL MEBy: NICOLE K. INTSCHERT, ESQ. Assistant District Attorney Attorney for Respondent Criminal Courthouse, 4th Floor 505 South State Street Syracuse, NY 13202 Tel: (315)435-2470 JAMES P. MAXWELL, ESQ. Chief Assistant District Attorney NICOLE K. INTSCHERT, ESQ. Assistant District Attorney Of Counsel DATED: December 18, 2017 21 WORD COUNT I certify that according to the word processing program on my computer this brief has 4908 words. COLE K. INTSCHERT A NI 22