People v. Russell

Decision Date01 May 2015
PartiesThe PEOPLE of the State of New York, Respondent, v. Dashawn L. RUSSELL, also known as Shawn, Defendant–Appellant. (Appeal No. 1.).
CourtNew York Supreme Court — Appellate Division

128 A.D.3d 1383
7 N.Y.S.3d 790
2015 N.Y. Slip Op. 03674

The PEOPLE of the State of New York, Respondent
v.
Dashawn L. RUSSELL, also known as Shawn, Defendant–Appellant.
(Appeal No. 1.).

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

May 1, 2015.


7 N.Y.S.3d 791

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.

PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND DeJOSEPH, JJ.

Opinion

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 A.D.3d 1122, 1123, 891 N.Y.S.2d 921, lv. denied 14 N.Y.3d 887, 903 N.Y.S.2d 776, 929 N.E.2d 1011 ; see also People v. Frazier, 63 A.D.3d 1633, 1633, 880 N.Y.S.2d 809, lv. denied 12 N.Y.3d 925, 884 N.Y.S.2d 706, 912 N.E.2d 1087 ). 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 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 ; People v. Nunez, 73 A.D.3d 1469, 1469, 899 N.Y.S.2d 925, lv. denied 15...

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6 cases
  • People v. Kates
    • United States
    • New York Supreme Court — Appellate Division
    • June 15, 2018
    ...court issued a ruling thereon (see People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 [1986] ; People v. Russell, 128 A.D.3d 1383, 1384, 7 N.Y.S.3d 790 [4th Dept. 2015], lv denied 25 N.Y.3d 1207, 16 N.Y.S.3d 529, 37 N.E.3d 1172 [2015] ). We reject defendant's contenti......
  • People v. Rodgers
    • United States
    • New York Supreme Court — Appellate Division
    • June 8, 2018
    ...suppression issue on appeal (see People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 [1986] ; People v. Russell, 128 A.D.3d 1383, 1384, 7 N.Y.S.3d 790 [4th Dept. 2015], lv. denied 25 N.Y.3d 1207, 16 N.Y.S.3d 529, 37 N.E.3d 1172 [2015] ; People v. Scaccia, 6 A.D.3d 1105......
  • People v. Harris
    • United States
    • New York Supreme Court — Appellate Division
    • October 19, 2016
    ...issue (see People v. Lleras, 140 A.D.3d 985, 32 N.Y.S.3d 510 ; People v. Newkirk, 133 A.D.3d 1364, 20 N.Y.S.3d 507 ; People v. Russell, 128 A.D.3d 1383, 7 N.Y.S.3d 790 ; People v. Rodriguez, 118 A.D.3d 1182, 987 N.Y.S.2d 264 ; People v. Gillett, 105 A.D.3d 1444, 963 N.Y.S.2d 906 ; People v.......
  • People v. Lleras
    • United States
    • New York Supreme Court — Appellate Division
    • June 15, 2016
    ...contentions relating to that motion (see People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 ; People v. Russell, 128 A.D.3d 1383, 1384, 7 N.Y.S.3d 790 ; People v. Rodriguez, 118 A.D.3d 1182, 987 N.Y.S.2d 264 ; People v. Barton, 113 A.D.3d 927, 928, 978 N.Y.S.2d 446 ; ......
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