Opinion
1178 KA 19–00027
12-20-2019
The PEOPLE of the State of New York, Respondent, v. Jeremiah L. MARKWICK, Defendant–appellant.
PAUL B. WATKINS, FAIRPORT, FOR DEFENDANT–APPELLANT. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (HARMONY A. HEALY OF COUNSEL), FOR RESPONDENT.
PAUL B. WATKINS, FAIRPORT, FOR DEFENDANT–APPELLANT.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (HARMONY A. HEALY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER 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 criminal possession of a controlled substance in the third degree ( Penal Law § 220.16[1] ). We affirm.
As defendant asserted in his brief and acknowledged at oral argument, he pleaded guilty before County Court had finally ruled on that part of his omnibus motion that sought to suppress physical evidence purportedly recovered during the execution of a search warrant. Consequently, defendant "forfeited his contention that [such] evidence ... must be suppressed" ( People v. McIntosh, 274 A.D.2d 968, 969, 711 N.Y.S.2d 655 [4th Dept. 2000], lv denied 95 N.Y.2d 906, 716 N.Y.S.2d 647, 739 N.E.2d 1152 [2000] ; see People v. Scaccia, 6 A.D.3d 1105, 1105, 776 N.Y.S.2d 420 [4th Dept. 2004], lv denied 3 N.Y.3d 681, 784 N.Y.S.2d 19, 817 N.E.2d 837 [2004] ; People v. Mojica, 291 A.D.2d 833, 833, 736 N.Y.S.2d 641 [4th Dept. 2002], lv denied 98 N.Y.2d 653, 745 N.Y.S.2d 512, 772 N.E.2d 615 [2002] ). Contrary to defendant's further contention, the court properly refused to suppress the statement he made at the police station. The court's determination that defendant "voluntarily waived his Miranda rights prior to making [the challenged] statement[ ] was based upon the credibility of the witnesses at the suppression hearing and thus is entitled to great deference" ( People v. Vaughan, 48 A.D.3d 1069, 1071, 850 N.Y.S.2d 735 [4th Dept. 2008], lv denied 10 N.Y.3d 845, 859 N.Y.S.2d 404, 889 N.E.2d 91 [2008], cert denied 555 U.S. 910, 129 S.Ct. 252, 172 L.Ed.2d 190 [2008] ), and the minor inconsistencies in the police testimony at the suppression hearing "concerning the precise time when the warnings were provided do[ ] not undermine the court's [credibility] determination" ( People v. Williams, 118 A.D.3d 1429, 1429, 988 N.Y.S.2d 771 [4th Dept. 2014], lv denied 24 N.Y.3d 1222, 4 N.Y.S.3d 610, 28 N.E.3d 46 [2015] ).
Defendant also argues that he received ineffective assistance of counsel. To the extent that it concerns matters outside the record, defendant must raise that argument in a CPL article 440 motion (see People v. Partridge, 173 A.D.3d 1769, 1771, 104 N.Y.S.3d 448 [4th Dept. 2019], lv denied 34 N.Y.3d 935, 109 N.Y.S.3d 716, 133 N.E.3d 419 [2019] ). To the extent that defendant's argument concerns matters in the record before us and survives his guilty plea (see generally People v. Yates, 173 A.D.3d 1849, 1850, 103 N.Y.S.3d 728 [4th Dept. 2019] ), we reject it because he "has not made the required showing that there was no strategic or other legitimate explanation for counsel's failure to [insist on] a Darden hearing ..., particularly in light of the [suppression] hearing in this case, which explored the identity and reliability of the [police] informant[ ]" ( People v. Smith, 301 A.D.2d 671, 673, 753 N.Y.S.2d 202 [3d Dept. 2003], lv denied 99 N.Y.2d 658, 760 N.Y.S.2d 123, 790 N.E.2d 297 [2003] ).