SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
482 KA 13-01646 PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DASHAWN L. RUSSELL, ALSO KNOWN AS SHAWN, DEFENDANT-APPELLANT. (APPEAL NO. 1.)
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.
DASHAWN L. RUSSELL, DEFENDANT-APPELLANT PRO SE.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.), rendered February 15, 2013. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]). In appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (§ 220.16 [12]). In both appeals, defendant contends in his main and pro se supplemental briefs that County Court should have suppressed evidence found during a search of his residence because the search warrant was not supported by probable cause, was overbroad, and was not executed in a timely manner. Defendant’s challenges to the search warrant are encompassed by his valid waiver of the right to appeal (see People v Garland, 69 AD3d 1122, 1123, lv denied 14 NY3d 887; see also People v Frazier, 63 AD3d 1633, 1633, lv denied 12 NY3d 925). Moreover, because defendant pleaded guilty before the court issued a suppression ruling with respect to the evidence seized from his home pursuant to the search warrant, he forfeited the right to raise the suppression issue on appeal (see People v Fernandez, 67 NY2d 686, 688; People v Nunez, 73 AD3d 1469, 1469, lv denied 15 NY3d 808). Defendant’s contention in his main and pro se supplemental briefs that he was penalized for requesting a copy of the search warrant and the search warrant application “does not implicate the voluntariness of
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the plea and thus it is also encompassed by his valid waiver of the right to appeal” (People v Zolner, 90 AD3d 1551, 1552; see generally People v Muniz, 91 NY2d 570, 573-574).
Finally, defendant’s contention in his pro se supplemental brief that he was denied effective assistance of counsel because defense counsel failed to pursue a suppression hearing “ ‘does not survive [his] plea or [his] valid waiver of the right to appeal because [he] failed to demonstrate that the plea bargaining process was infected by [the] allegedly ineffective assistance or that [he] entered the plea because of [his] attorney[’s] allegedly poor performance’ ” (People v Smith, 122 AD3d 1300, 1301; see People v Leigh, 71 AD3d 1288, 1288, lv denied 15 NY3d 775).
Entered: May 1, 2015 Frances E. Cafarell Clerk of the Court