People v. Gillett

Decision Date26 April 2013
Citation963 N.Y.S.2d 906,105 A.D.3d 1444,2013 N.Y. Slip Op. 02947
PartiesThe PEOPLE of the State of New York, Respondent, v. Jody B. GILLETT, Defendant–Appellant.
CourtNew York Supreme Court — Appellate Division

OPINION TEXT STARTS HERE

Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered March 21, 2012. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree.

Keliann M. Elniski, Orchard Park, for DefendantAppellant.

Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ). Defendant's contention that County Court erred in failing to conduct a hearing on his challenge to the voluntariness of his statements to the police does not survive his guilty plea. “A guilty plea generally results in a forfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings” ( People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838), and the exception set forth in CPL 710.70(2) does not apply here because defendant pleaded guilty before the court issued a decision on his suppression motion ( see generally People v. Elmer, 19 N.Y.3d 501, 507–508, 950 N.Y.S.2d 77, 973 N.E.2d 172). Defendant's challenge to the legal sufficiency of the evidence before the grand jury with respect to the third count of the indictment likewise does not survive the guilty plea ( see People v. Smith, 28 A.D.3d 1202, 1202, 814 N.Y.S.2d 832,lv. denied7 N.Y.3d 818, 822 N.Y.S.2d 493, 855 N.E.2d 809;see generally People v. Iannone, 45 N.Y.2d 589, 600–601, 412 N.Y.S.2d 110, 384 N.E.2d 656). Finally, defendant's contention that he was denied effective assistance of counsel “does not survive his guilty plea ... because there was no showing that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance” ( People v. Dean, 48 A.D.3d 1244, 1245, 852 N.Y.S.2d 545,lv. denied 10 N.Y.3d 839, 859 N.Y.S.2d 398, 889 N.E.2d 85 [internal quotation marks omitted] ).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

SCUDDER, P.J., PERADOTTO, LINDLEY, VALENTINO, and MARTOCHE, JJ., concur.

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8 cases
  • People v. Newkirk
    • United States
    • New York Supreme Court — Appellate Division
    • November 20, 2015
    ...guilty plea inasmuch as she "pleaded guilty before the court issued a decision on [her] suppression motion" (People v. Gillett, 105 A.D.3d 1444, 963 N.Y.S.2d 906 ; see CPL 710.70[2] ). We reject defendant's contention in her pro se supplemental brief that the sentence is unduly harsh and se......
  • People v. Howington
    • United States
    • New York Supreme Court — Appellate Division
    • November 18, 2016
    ...challenge to the legal sufficiency of the evidence before the grand jury does not survive the guilty plea (see People v. Gillett, 105 A.D.3d 1444, 1445, 963 N.Y.S.2d 906 ; People v. Lawrence, 273 A.D.2d 805, 805, 710 N.Y.S.2d 262, lv. denied 95 N.Y.2d 867, 715 N.Y.S.2d 222, 738 N.E.2d 370 ;......
  • People v. Herron
    • United States
    • New York Supreme Court
    • November 19, 2021
    ...challenge to the legal sufficiency of the evidence before the grand jury, which does not survive the guilty plea (see People v Gillett, 105 A.D.3d 1444, 1445 [4th Dept 2013]; People v Lawrence, 273 A.D.2d 805, 805 [4th 2000], lv denied 95 N.Y.2d 867 [2000]). Defendant's contention that the ......
  • People v. Rice
    • United States
    • New York Supreme Court — Appellate Division
    • April 26, 2013
    ...Law § 170.25) and one count of attempted petit larceny (§§ 110.00, 155.25), defendant contends that the conviction of the two counts of [105 A.D.3d 1444]criminal possession of a forged instrument is not supported by legally sufficient evidence. At the close of the People's case, defense cou......
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