Opinion
17658 Ind. No. 449/13 Case No. 2014–2077
04-06-2023
The PEOPLE of the State of New York, Respondent, v. Barry WILLIAMS, Defendant–Appellant.
Twyla Carter, The Legal Aid Society, New York (Steven R. Berko of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Claire Lynch of counsel), for respondent.
Twyla Carter, The Legal Aid Society, New York (Steven R. Berko of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Claire Lynch of counsel), for respondent.
Renwick, A.P.J., Kapnick, Friedman, Moulton, Kennedy, JJ.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered May 22, 2013, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree, and sentencing him to a term of nine months, unanimously affirmed.
The court never ruled on defendant's request for a hearing pursuant to People v. Darden , 34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49 (1974). Thus, defendant's claim that the court should have granted such a hearing is forfeited by his guilty plea (see CPL 710.70[2] ; People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 [1986] ). Likewise, this claim is unpreserved and we decline to review it in the interest of justice.
In an omnibus motion, defendant requested various relief including a Darden hearing. The court expressly granted certain requests, including several hearings, expressly denied other specified relief, and neither granted nor denied a Darden hearing. Thus, the court may not be deemed to have denied that request, and "to the extent that the order required clarification with respect to precisely what hearings had been granted, it was incumbent upon defendant to call the problem to the court's attention" ( People v. Rodriguez, 33 A.D.3d 401, 402, 822 N.Y.S.2d 82 [1st Dept. 2006], lv denied 7 N.Y.3d 904, 826 N.Y.S.2d 613, 860 N.E.2d 75 [2006] ). By failing to do so, defendant acquiesced in the lack of a ruling and abandoned the claim (see e.g. People v. Graves, 85 N.Y.2d 1024, 1027, 630 N.Y.S.2d 972, 654 N.E.2d 1220 [1995] ; People v. Henriquez, 246 A.D.2d 427, 668 N.Y.S.2d 34 [1998], lv denied 91 N.Y.2d 942, 671 N.Y.S.2d 721, 694 N.E.2d 890 [1998] ; People v. Brimage, 214 A.D.2d 454, 631 N.Y.S.2d 2 [1st Dept. 1995], lv denied 86 N.Y.2d 732, 631 N.Y.S.2d 613, 655 N.E.2d 710 [1995] ).
Additionally, we do not find that a Darden hearing was warranted.