Opinion
06-16-2017
The PEOPLE of the State of New York, Respondent, v. Roberto A. GUERRERO, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of Counsel), for defendant-appellant. Sandra Doorley, District Attorney, Rochester (Kelly Christine Wolford of Counsel), for respondent.
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of Counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Kelly Christine Wolford of Counsel), for respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of burglary in the second degree (Penal Law § 140.25[2] ). Defendant's contention that he was unlawfully arrested in his home without an arrest warrant in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 is not preserved for our review (see CPL 470.05[2] ), because that contention is based on grounds that were not raised before Supreme Court (see People v. Martin, 50 N.Y.2d 1029, 1031, 431 N.Y.S.2d 689, 409 N.E.2d 1363 ). We decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ), particularly in view of the fact that the lack of preservation resulted in a hearing record that was not fully developed with respect to that contention (see People v. Flores, 83 A.D.3d 1460, 1460, 919 N.Y.S.2d 747, affd. 19 N.Y.3d 881, 948 N.Y.S.2d 575, 971 N.E.2d 856 ). We note, however, that our affirmance should not be construed as a ratification of the suppression court's characterization of the police work as it was described at the hearing (see generally Tydings v. Greenfield, Stein & Senior, LLP, 43 A.D.3d 680, 684, 843 N.Y.S.2d 538, affd. 11 N.Y.3d 195, 868 N.Y.S.2d 563, 897 N.E.2d 1044 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
WHALEN, P.J., PERADOTTO, DeJOSEPH, CURRAN, and WINSLOW, JJ., concur.