People v. Shandler

Appeal by the defendant from a judgment of the County Court, Rockland County (Nelson, J.), rendered April 25, 1989, convicting him of criminal sale of a prescription for a controlled substance (12 counts), upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant, a dentist, was indicted for the crime of criminal sale of a prescription for a controlled substance under Penal Law § 220.65 which provides as follows: "A person is guilty of criminal sale of a prescription for a controlled substance when, being a practitioner, as that term is defined in section thirty-three hundred two of the public health law, he knowingly and unlawfully sells a prescription for a controlled substance. For the purposes of this section, a person sells a prescription for a controlled substance unlawfully when he does so other than in good faith in the course of his professional practice”. The individual counts in the indictment allege that the defendant violated Penal Law § 220.65 on various dates in 1987 and 1988, in that he "knowingly and unlawfully sold a prescription for a controlled substance to wit: Percocet”. The People’s bill of particulars describes the defendant’s alleged unlawful acts as follows: "In each instance, the defendant sold (as that term, a term of art, is defined in [Penal Law] § 220.00 [1]) an official New York State prescription (commonly called a 'triplicate’), written for a named ostensible patient, said name being a name other than that of defendant’s, to Nuzzi’s Pharmacy”.

The defendant then moved to dismiss the indictment on the ground that he was alleged to be both the seller and the buyer of the prescriptions, and that the evidence before the Grand Jury was "legally insufficient to establish the elements of the crime”. The defendant’s motion was denied, and the defendant thereafter pleaded guilty and received a sentence of probation.

In People v Iannone (45 NY2d 589), the Court of Appeals stated: "Although it is true that a jurisdictional defect in an indictment is not waived by a guilty plea * * * it is equally true that not every defect in an indictment is a jurisdictional defect * * *. In essence, an indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime. For example, an indictment will be jurisdictionally defective if the acts it accuses defendant of performing simply do not constitute a crime * * * or if it fails to allege that a defendant committed acts constituting every material element of the crime charged” (People v Iannone, supra, at 600).

The indictment in the instant case, as amplified by the bill of particulars, clearly satisfies the standard set forth in People v Iannone (supra). Indeed, the defendant’s arguments on the instant appeal are instead directed toward the "interpretation or application of the statute” (People v Levin, 57 NY2d 1008, 1009) and the sufficiency of the Grand Jury evidence. However, it is well settled that these issues are waived by a plea of guilty (see, People v Thomas, 74 AD2d 317, 321, affd 53 NY2d 338; People v Levin, supra; People v Ferrara, 99 AD2d 257, 259). Nor do the circumstances of this case warrant the exercise of our interest of justice jurisdiction. Accordingly, the judgment of conviction is affirmed. Mangano, P. J., Thompson and Lawrence, JJ., concur.