People v. Boone

• Decision Date: 13 October 2011
• Parties: The PEOPLE of the State of New York, Respondent,v.Michael BOONE, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 496
930 N.Y.S.2d 870
2011 N.Y. Slip Op. 07160

The PEOPLE of the State of New York, Respondent,
v.
Michael BOONE, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Oct. 13, 2011.

Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant.Michael Boone, appellant pro se.Cyrus R. Vance, Jr., District Attorney, New York (John B.F. Martin of counsel), for respondent.

[88 A.D.3d 496] Judgment, Supreme Court, New York County (Herbert J. Adlerberg, J.H.O. at suppression hearing; Charles H. Solomon, J. at suppression decision and dismissal motion; Maxwell Wiley, J. at plea and sentencing), rendered January 6, 2010, convicting defendant of criminal possession of a weapon in the third degree and resisting arrest, and sentencing him to an aggregate term of 1 year, unanimously affirmed.

By pleading guilty, defendant forfeited appellate review of his claim that he was entitled to dismissal of the indictment on the ground that the People introduced allegedly improper evidence before the grand jury ( see People v. Hansen, 95 N.Y.2d 227, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000]; People v. Cuoco, 69 A.D.3d 468, 468, 894 N.Y.S.2d 17 [2010] lv. denied 14 N.Y.3d 839, 901 N.Y.S.2d 146, 927 N.E.2d 567 [2010] ). There is no basis for applying the limited exception set forth in People v. Pelchat, 62 N.Y.2d 97, 476 N.Y.S.2d 79, 464 N.E.2d 447 [1984].

[88 A.D.3d 497] The court properly denied defendant's suppression motion. There is no basis for disturbing the credibility determinations made by the Judicial Hearing Officer and adopted by the court.

The record, taken as a whole ( see People v. Providence, 2 N.Y.3d 579, 583, 780 N.Y.S.2d 552, 813 N.E.2d 632 [2004] ), establishes that, after a brief but sufficient colloquy, defendant made a knowing and intelligent waiver of his right to counsel at the suppression hearing.

Since defendant did not move to withdraw his guilty plea, he did not preserve his claim that the plea court was obligated to ask defendant if he understood he was giving up an intoxication defense. This case does not come within the narrow exception to the preservation requirement ( see People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ), because there was nothing in the plea allocution that cast doubt on defendant's guilt or raised any defense. Accordingly, this claim is unpreserved and we decline to review it in the interest of justice. As an alternative...