People v. Clavijo

Mikoll, J. Appeal from a judgment of the County Court of Albany County (Harris, J.), rendered October 15, 1985, convicting defendant upon his plea of guilty of the crimes of burglary in the first degree, rape in the first degree and sodomy in the first degree. Defendant entered a plea of guilty to the crimes of burglary in the first degree, rape in the first degree and sodomy in the first degree in satisfaction of the eight felonies charged in the indictment. On appeal, defendant contends that County Court abused its discretion in refusing to allow him to withdraw his guilty plea at the time of sentencing, improperly denied his motion to suppress the identifications made by the two female victims of his criminal activity, and erred in denying defendant’s severance motion. We disagree. There should be an affirmance. There is no merit in any of the arguments defendant makes to support his contention that County Court abused its discretion in refusing to allow him to withdraw his plea of guilty (see, People v Tinsley, 35 NY2d 926, 927; People v Kelsch, 96 AD2d 677, 678; People v Gibson, 84 AD2d 885, 886). The plea was well taken and there was no adequate reason advanced which would warrant such withdrawal. Defendant’s attack on the admissibility of identification testimony was based on a claim that the composition of the photo array caused it to be unnecessarily suggestive. There was some conflict in the testimony of the witnesses as to the number of pictures in the array but "the suppression court [is] entitled to make a determination concerning the credibility of the witnesses appearing before it, and [an appellate court should] not disturb that determination on appeal” (People v Valo, 92 AD2d 1004; see, People v Owens, 111 AD2d 273, 274). [908] Finally, the propriety of the denial of defendant’s severance motion is not properly before this court for review since a guilty plea waives all nonjurisdictional defects (see, People v Cleveland, 81 AD2d 944, 945; People v Smith, 41 AD2d 893, 894). Judgment affirmed. Mahoney, P. J., Casey, Weiss, Mikoll and Levine, JJ., concur.