David P. Elkovitch, Auburn, for Defendant–Appellant. Dashawn L. Russell, Defendant–Appellant pro se.
Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND DeJOSEPH, JJ.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ). In appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (§ 220.16 [12] ). In both appeals, defendant contends in his main and pro se supplemental briefs that County Court should have suppressed evidence found during a search of his residence because the search warrant was not supported by probable cause, was overbroad, and was not executed in a timely manner. Defendant's challenges to the search warrant are encompassed by his valid waiver of the right to appeal ( see People v. Garland, 69 A.D.3d 1122, 1123, 891 N.Y.S.2d 921, lv. denied14 N.Y.3d 887, 903 N.Y.S.2d 776, 929 N.E.2d 1011; see also People v. Frazier, 63 A.D.3d 1633, 1633, 880 N.Y.S.2d 809, lv. denied12 N.Y.3d 925, 884 N.Y.S.2d 706, 912 N.E.2d 1087). Moreover, because defendant pleaded guilty before the court issued a suppression ruling with respect to the evidence seized from his home pursuant to the search warrant, he forfeited the right to raise the suppression issue on appeal ( see People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838; People v. Nunez, 73 A.D.3d 1469, 1469, 899 N.Y.S.2d 925, lv. denied15 N.Y.3d 808, 908 N.Y.S.2d 167, 934 N.E.2d 901). Defendant's contention in his main and pro se supplemental briefs that he was penalized for requesting a copy of the search warrant and the search warrant application “does not implicate the voluntariness of the plea and thus it is also encompassed by his valid waiver of the right to appeal” (People v. Zolner, 90 A.D.3d 1551, 1552, 934 N.Y.S.2d 902; see generally People v. Muniz, 91 N.Y.2d 570, 573–574, 673 N.Y.S.2d 358, 696 N.E.2d 182).
Finally, defendant's contention in his pro se supplemental brief that he was denied effective assistance of counsel because defense counsel failed to pursue a suppression hearing “ ‘does not survive [his] plea or [his] valid waiver of the right to appeal because [he] failed to demonstrate that the plea bargaining process was infected by [the] allegedly ineffective assistance or that [he] entered the plea because of [his] attorney['s] allegedly poor performance’ ” (People v. Smith, 122 A.D.3d 1300, 1301, 995 N.Y.S.2d 881; see People v. Leigh, 71 A.D.3d 1288, 1288, 897 N.Y.S.2d 744, lv. denied15 N.Y.3d 775, 907 N.Y.S.2d 464, 933 N.E.2d 1057).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.