Opinion
548 KA 16–02288
04-27-2018
The PEOPLE of the State of New York, Respondent, v. Frank K. WISNIEWSKI, Defendant–Appellant.
NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (MARSHALL A. KELLY OF COUNSEL), FOR DEFENDANT–APPELLANT. DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF COUNSEL), FOR RESPONDENT.
NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (MARSHALL A. KELLY OF COUNSEL), FOR DEFENDANT–APPELLANT.
DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, AND NEMOYER, JJ.
MEMORANDUM AND ORDER
Memorandum:
Defendant appeals from a judgment convicting him upon his guilty plea of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1] ) and criminal possession of a controlled substance in the third degree (§ 220.16[1] ). Defendant's contention that County Court erred in failing to conduct an audibility hearing and to render a decision thereon does not survive his guilty plea (see People v. Gillett, 105 A.D.3d 1444, 1444, 963 N.Y.S.2d 906 [4th Dept. 2013] ). By pleading guilty, defendant forfeited review of the merits of his contention regarding the audibility of certain evidence (see People v. Dunkins, 231 A.D.2d 587, 588, 647 N.Y.S.2d 107 [2d Dept. 1996], lv denied 89 N.Y.2d 863, 653 N.Y.S.2d 286, 675 N.E.2d 1239 [1996] ; see also People v. Alvarado, 103 A.D.3d 1101, 1101, 958 N.Y.S.2d 554 [4th Dept. 2013], lv denied 21 N.Y.3d 910, 966 N.Y.S.2d 362, 988 N.E.2d 891 [2013] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.