People v. Roache
| Decision Date | 19 November 1984 |
| Citation | 105 A.D.2d 811,481 N.Y.S.2d 442 |
| Parties | The PEOPLE, etc., Respondent, v. Walter ROACHE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Arthur J. Selkin, Yorktown Heights, for appellant.
Joseph P. Brown, Dist. Atty., Goshen (Barbara J. Strauss, Asst. Dist. Atty., Goshen, of counsel), for respondent.
Before MANGANO, J.P., and GIBBONS, O'CONNOR and BROWN, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the County Court, Orange County, rendered July 31, 1979, convicting him of rape in the first degree (two counts) and rape in the third degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of the defendant's motion to suppress physical evidence.
Judgment affirmed.
At no time did the defendant raise before the suppression court the issue that the physical evidence should have been suppressed because his arrest was effected in his home without a warrant and in the absence of exigent circumstances (see Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639). By not pursuing that particular issue, the defendant has failed to preserve it for appellate review (People v. Smith, 55 N.Y.2d 888, 449 N.Y.S.2d 19, 433 N.E.2d 1267; People v. Gonzalez, 55 N.Y.2d 887, 449 N.Y.S.2d 18, 433 N.E.2d 1266; People v. Nieves, 102 A.D.2d 858, 476 N.Y.S.2d 632; People v. Jennings, 94 A.D.2d 802, 463 N.Y.S.2d 53; see People v. Kaminski, 58 N.Y.2d 886, 460 N.Y.S.2d 495, 447 N.E.2d 43; cf. People v. Gordon, 98 A.D.2d 781, 470 N.Y.S.2d 14; People v. Maerling, 89 A.D.2d 1001, 454 N.Y.S.2d 318). Moreover, under the circumstances presented, review of this issue is not warranted as a matter of discretion in the interest of justice.
The record of the defendant's CPL 440 motion is not properly before us at this juncture (cf. People v. Mishkin, 20 N.Y.2d 716, 282 N.Y.S.2d 779, 229 N.E.2d 454; People v. Gates, 36 A.D.2d 761, 319 N.Y.S.2d 569).
We have considered the defendant's remaining contentions and find them to be without merit.
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People v. Cook
... ... During the Huntley hearing, defendant failed to argue or request County Court to rule upon this issue. By not pursuing the issue, defendant failed to preserve it for our review as a matter of law (People v. Roache, 105 A.D.2d 811, 812, 481 N.Y.S.2d 442; see People v. Martin, 50 N.Y.2d 1029, 431 N.Y.S.2d 689, 409 N.E.2d 1363). And, we decline to exercise our discretion to review this issue in the interest of justice (CPL 470.15) ... Defendant next argues that County Court committed error ... ...
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