Opinion
KA 01-01814
February 1, 2002.
Appeal from a judgment of Monroe County Court (Bristol, J.), entered April 13, 1998, convicting defendant upon his plea of guilty of, inter alia, criminal possession of a controlled substance in the second degree (two counts).
CHARLES T. NOCE, ROCHESTER, FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN K. LINDLEY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., HAYES, SCUDDER, GORSKI, AND LAWTON, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
By pleading guilty before County Court ruled on his motion to suppress physical evidence seized during a warrantless search of his business premises, defendant forfeited the right to appellate review of his contention that the search was illegal ( see, People v. Fernandez, 67 N.Y.2d 686, 688; People v. McIntosh, 274 A.D.2d 968, 969, lv denied 95 N.Y.2d 906). In any event, that contention is encompassed by defendant's waiver of the right to appeal ( see, People v. Miles, 265 A.D.2d 869, lv denied 94 N.Y.2d 923). We reject the further contention of defendant that he was denied effective assistance of counsel when he was induced to plead guilty as the result of defense counsel's failure to pursue the suppression motion ( see, People v. Grant [appeal No. 1] , 288 A.D.2d 898 [decided Nov. 9, 2001]). By failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve for our review his challenge to the voluntariness of his plea ( see, People v. Phillips, 286 A.D.2d 958; People v. Faison, 270 A.D.2d 717).