Opinion
7865 Ind. 622/16 2606/16
12-13-2018
The PEOPLE of the State of New York, Respondent, v. Kaseem WILSON, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Eric Del Pozo of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Eric Del Pozo of counsel), for respondent.
Friedman, J.P., Gische, Kapnick, Kahn, Kern, JJ.
Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered April 18, 2017, as amended August 1, 2017, convicting defendant, upon his plea of guilty, of attempted murder in the second degree and conspiracy in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 15 years and 8 months, unanimously affirmed.
Defendant forfeited appellate review of his motion to controvert a search warrant that permitted retrieval of potential evidence from defendant's cell phones, because he pleaded guilty before the court issued an order finally denying any part of his suppression motion (see People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 [1986] ). Even if the court's order can be viewed as deciding the particular issue defendant seeks to raise on appeal, by its express terms the order did not constitute "[a]n order finally denying a motion to suppress evidence" ( CPL 710.70[2] ), because it was contingent on the outcome of a hearing into the legality of defendant's arrest, which would have affected the legality of the ensuing search warrant. However, defendant pleaded guilty before the hearing was held. In any event, regardless of whether defendant forfeited his challenge to the search warrant, we find that the application for the warrant established probable cause.
Defendant's claim of a technical defect in his restructured sentence is unreviewable because defendant was not "adversely affected" ( CPL 470.15[1] ) when his sentence was reduced at his own request, for his benefit, to resolve a matter relating to credit for time served on another sentence (see People v. McNeil, 164 A.D.3d 1106, 82 N.Y.S.3d 403 [1st Dept. 2018] ; People v. Francis, 164 A.D.3d 1108, 82 N.Y.S.3d 401 [1st Dept. 2018] ).
We perceive no basis for a reduction in sentence.