Opinion
337 KA 12-02268.
04-29-2016
The PEOPLE of the State of New York, Respondent, v. Mark DUDDEN, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of Counsel), for Defendant–Appellant. Mark Dudden, Defendant–Appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of Counsel), for Defendant–Appellant.
Mark Dudden, Defendant–Appellant pro se.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: SMITH, J.P., DeJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the second degree (Penal Law § 220.41[1] ). Although we agree with defendant that the waiver of the right to appeal is invalid because “ ‘the minimal inquiry made by County Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ ” (People v. Jones, 107 A.D.3d 1589, 1589–1590, 966 N.Y.S.2d 724, lv. denied 21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 ; see People v. Amir W., 107 A.D.3d 1639, 1640, 969 N.Y.S.2d 289 ), we nevertheless affirm the judgment.
Defendant contends that his plea should be vacated because he was coerced into pleading guilty by the court's decision to change the date of his trial. Defendant failed to preserve that contention for our review (see People v. Boyd, 101 A.D.3d 1683, 1683, 956 N.Y.S.2d 382 ; People v. Lando, 61 A.D.3d 1389, 1389, 876 N.Y.S.2d 923, lv. denied 13 N.Y.3d 746, 886 N.Y.S.2d 100, 914 N.E.2d 1018 ), and this case does not fall within the narrow exception to the preservation requirement (see People v. Carlisle, 50 A.D.3d 1451, 1451, 856 N.Y.S.2d 410, lv. denied 10 N.Y.3d 957, 863 N.Y.S.2d 141, 893 N.E.2d 447 ; People v. Gray, 21 A.D.3d 1398, 1399, 801 N.Y.S.2d 455 ; cf. People v. Lang, 127 A.D.3d 1253, 1255, 7 N.Y.S.3d 618 ; see generally People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). Contrary to defendant's further contention, the court properly refused to suppress identification evidence upon determining that the undercover officer's identification of defendant was merely confirmatory (see generally People v. Wharton, 74 N.Y.2d 921, 922–923, 550 N.Y.S.2d 260, 549 N.E.2d 462 ). We also reject defendant's challenge to the severity of the sentence.
In his pro se supplemental brief, defendant contends that the court erred in denying his request for a Darden hearing. We reject that contention. Where, as here, information is received from a confidential informant but the police officer thereafter makes his or her own observations of criminal activity without further employment of the informant, those observations form the basis for probable cause to arrest, rendering a Darden hearing unnecessary (see People v. Darden, 34 N.Y.2d 177, 180–181, 356 N.Y.S.2d 582, 313 N.E.2d 49, rearg. denied 34 N.Y.2d 995, 360 N.Y.S.2d 1027, 318 N.E.2d 613 ; People v. Long, 100 A.D.3d 1343, 1345–1346, 953 N.Y.S.2d 744, lv. denied 20 N.Y.3d 1063, 962 N.Y.S.2d 613, 985 N.E.2d 923 ).
Defendant further contends in his pro se supplemental brief that the court erred in refusing to dismiss or reduce the indictment because the People were improperly permitted to amend the indictment. “[B]y his guilty plea, defendant forfeited any challenge to the alleged amendment of the indictment” (People v. Torres, 117 A.D.3d 1497, 1498, 984 N.Y.S.2d 530, lv. denied 24 N.Y.3d 965, 996 N.Y.S.2d 224, 20 N.E.3d 1004 ). Finally, we conclude that defendant's remaining contention in his pro se supplemental brief lacks merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.