Opinion
December 31, 1998
Appeal from Judgment of Ontario County Court, Henry, Jr., J. — Criminal Sale Controlled Substance, 3rd Degree.
Judgment unanimously affirmed. Memorandum: By pleading guilty, defendant waived his contention that he was denied the right to appear before the Grand Jury ( see, People v. Franklin, 232 A.D.2d 577, lv denied 89 N.Y.2d 985; People v. Dennis, 223 A.D.2d 814, lv. denied 87 N.Y.2d 972; People v. Smith, 168 A.D.2d 915, 916, lv. denied 77 N.Y.2d 911). Further, defendant failed to move to dismiss the indictment on that ground within five days of his arraignment, thereby waiving his right to contend at a later time that he was denied the right to appear ( see, CPL 190.50 [c]; People v. Valle, 198 A.D.2d 459, lv denied 82 N.Y.2d 932).
The record does not support defendant's contention that the affidavit of the informant was not considered by the Town Court Justice as part of the search warrant application. The contention raised in defendant's brief with respect to that application is based upon matters dehors the record, and thus is not properly before this Court ( see, People v. Thayer, 210 A.D.2d 977; People v. Rodriguez, 123 A.D.2d 405, 406, lv denied 69 N.Y.2d 832).
Present — Denman, P. J., Hayes, Balio, Boehm and Fallon, JJ.