People v. Russell
Decision Date | 01 May 2015 |
Parties | The PEOPLE of the State of New York, Respondent, v. Dashawn L. RUSSELL, also known as Shawn, Defendant–Appellant. (Appeal No. 1.). |
Court | New 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.
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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