Opinion
13889
Decided and Entered: July 17, 2003.
Appeal from a judgment of the County Court of Sullivan County (La Buda, J.), rendered September 26, 2001, convicting defendant upon his plea of guilty of the crimes of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree.
Jeffrey H. Pearlman, Albany, for appellant.
Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), for respondent.
Before: Cardona, P.J., Spain, Carpinello, Mugglin and Kane, JJ.
MEMORANDUM AND ORDER
On May 24, 2001, a police-controlled confidential informant allegedly purchased cocaine from defendant at his residence. Based thereon, the police applied for and received a no-knock search warrant, the execution of which resulted in the seizure of 27 individually wrapped packages of cocaine, a loaded .22 caliber rifle and a sum of money. Defendant was indicted on a variety of drug possession charges and criminal possession of a weapon in the fourth degree, to which he pleaded not guilty. County Court set August 20, 2001 for motions but, after changing attorneys and following a pretrial conference on August 16, 2001, defendant entered a plea of guilty to one count each of criminal possession of a controlled substance in the third and fourth degrees in full satisfaction of the charges against him with the understanding that he would be sentenced to two concurrent prison terms of 1½ to 4½ years. Defendant was sentenced as agreed and now appeals from the judgment of conviction.
Defendant's principal argument on appeal, ineffective assistance of counsel, is premised on the failure of defense counsel to move to suppress the physical evidence seized pursuant to the search warrant. Defendant asserts that the affidavit submitted in support of the search warrant application sets forth no facts or circumstances showing either that the confidential informant was reliable or that he or she had a basis of knowledge for the information furnished. Hence, defendant argues that the physical evidence would have been suppressed and the indictment dismissed.
Regardless of the merit of this argument, the entry of a guilty plea constitutes an affirmative waiver of all unresolved suppression issues (see People v. White, 300 A.D.2d 830, 832, lv denied 99 N.Y.2d 586). Notably, defendant's appellate counsel does not argue that the ineffective assistance of counsel affected the voluntariness of defendant's plea of guilty. If we were to infer such an argument from the totality of the brief, we would nevertheless remain unpersuaded. First, the plea colloquy demonstrates that defendant voluntarily entered a plea of guilty. Second, defendant affirmatively expressed his satisfaction with the services of trial counsel. Third, defense counsel's failure to request a suppression hearing does not, without more, establish a claim of ineffective assistance of counsel (see People v. Longshore, 222 A.D.2d 941, lv denied 88 N.Y.2d 850). On this record, we are unable to state that no legitimate strategy was pursued by defense counsel, particularly where, as here, a defendant, who could have been sentenced to 8 to 25 years, receives a sentence of 1½ to 4½ years (see People v. Lynn, 295 A.D.2d 753, 754).
Cardona, P.J., Spain, Carpinello and Kane, JJ., concur. ORDERED that the judgment is affirmed.