Opinion
No. 489 KA 18-02069
06-10-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. LAWRENCE GAINES, DEFENDANT-APPELLANT.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, JJ.
Appeal from a judgment of the Supreme Court, Monroe County (Charles A. Schiano, Jr., J.), rendered December 11, 2017. The judgment convicted defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 265.03 [3]). We affirm. Preliminarily, as defendant contends and the People correctly concede, defendant did not validly waive his right to appeal (see People v Thomas, 34 N.Y.3d 545, 565-566 [2019], cert denied - U.S. -, 140 S.Ct. 2634 [2020]).
Defendant contends that Supreme Court's suppression ruling violated the law of the case doctrine. In particular, defendant contends that because the court stated, in the course of granting him a suppression hearing, that he had standing to seek suppression of the subject gun, it was precluded from ultimately ruling, based on the evidence adduced at the suppression hearing, that defendant lacked standing to challenge the search in which the gun was recovered. Defendant failed to preserve that contention for our review (see Matter of Piccillo, 43 A.D.3d 1344, 1344 [4th Dept 2007]; People v Chakrabarty, 27 A.D.3d 657, 658 [2d Dept 2006], lv denied 7 N.Y.3d 786 [2006]; People v Smith, 262 A.D.2d 77, 78 [1st Dept 1999], lv denied 93 N.Y.2d 1027 [1999]). Indeed, by expressly acknowledging in his post-hearing memorandum that the issue of standing remained open for determination, defendant affirmatively "invited th[e] ostensible error" of which he now complains (Matter of Travelers Cas. & Sur. Co. of Am. v Erie Canal Harbor Dev. Corp., 189 A.D.3d 2074, 2076 [4th Dept 2020]). In any event, defendant's contention is without merit. The court's initial assessment of defendant's standing was based solely on the motion papers, whereas the court's ultimate ruling on defendant's standing was based on the full record developed at the suppression hearing. Under these circumstances, the law of the case doctrine does not apply (see Matter of Hersh, 198 A.D.3d 766, 770 [2d Dept 2021], lv denied 37 N.Y.3d 919 [2022]; Gitman v Martinez, 169 A.D.3d 1283, 1284-1285 [3d Dept 2019]; Martinez v Paddock Chevrolet, Inc., 85 A.D.3d 1691, 1692-1693 [4th Dept 2011]; Smith, 262 A.D.2d at 78).