Opinion
No. 802 KA 05-01776.
July 6, 2007.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered April 6, 2005. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fourth degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT-APPELLANT.
DONALD R. GRAHAM, DEFENDANT-APPELLANT PRO SE.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (J. MICHAEL MARION OF COUNSEL), FOR RESPONDENT.
Present — Hurlbutt, J.P., Gorski, Smith, Lunn and Pine, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09). The record does not support the contention of defendant in his main brief that County Court failed to apprehend the extent of its discretion in fixing the term of incarceration ( cf. People v Schafer, 19 AD3d 1133; People v John, 288 AD2d 848, 850, lv denied 97 NY2d 705; People v Hager, 213 AD2d 1008). Contrary to the further contention of defendant in his main brief, the sentence is not unduly harsh or severe.
Defendant forfeited the right to our review of the various contentions in his pro se supplemental brief that the court should have suppressed evidence seized at the time of his arrest inasmuch as he pleaded guilty before the court determined whether suppression was warranted ( see People v Fernandez, 67 NY2d 686, 688; People v Pena, 265 AD2d 920, lv denied 94 NY2d 905). We have considered the remaining contentions of defendant in his pro se supplemental brief and conclude that they are without merit.