People v. Tower

• Decision Date: 31 December 1998
• Citation: People v. Tower, 684 N.Y.S.2d 453 (N.Y. App. Div. 1998)
• Parties: 1998 N.Y. Slip Op. 12,005 PEOPLE of the State of New York, Respondent, v. Duane R. TOWER, Appellant. . Supreme Court of New York, Appellate Division, Fourth Department
• Court: New York Supreme Court — Appellate Division

Page 453

684 N.Y.S.2d 453

1998 N.Y. Slip Op. 12,005

PEOPLE of the State of New York, Respondent, v.Duane R. TOWER, Appellant.

Supreme Court of New York, Appellate Division Fourth Department.

Supreme Court of New York, Appellate Division Fourth Department.

Dec. 31, 1998.

John Tyo, Shortsville, NY, for appellant.

R. Michael Tantillo by Kathleen Pohl, Canandaigua, NY, for respondent.

MEMORANDUM:

By pleading guilty, defendant waived his contention that he was denied the right to appear before the Grand Jury (see, People v. Franklin, 232 A.D.2d 577, 648 N.Y.S.2d 986, lv. denied, 89 N.Y.2d 985, 656 N.Y.S.2d 743, 678 N.E.2d 1359;People v. Dennis, 223 A.D.2d 814, 636 N.Y.S.2d 453, lv. denied, 87 N.Y.2d 972, 642 N.Y.S.2d 201, 664 N.E.2d 1264;People v. Smith, 168 A.D.2d 915, 916, 564 N.Y.S.2d 884, lv. denied, 77 N.Y.2d 911, 569 N.Y.S.2d 943, 572 N.E.2d 626).Further, defendant failed to move to dismiss the indictment on that ground within five days of his arraignment, thereby waiving his right to contend at a later time that he was denied the right to appear (see, CPL 190.50[5][c];People v. Valle, 198 A.D.2d 459, 605 N.Y.S.2d 904, lv. denied, 82 N.Y.2d 932, 610 N.Y.S.2d 184, 632 N.E.2d 494).

The record does not support defendant's contention that the affidavit of the informant was not considered by the Town Court Justice as part of the search warrant application.The contention raised in defendant's brief with respect to that application is based upon matters dehors the record, and thus is not properly before this Court(see, People v. Thayer, 210 A.D.2d 977, 621 N.Y.S.2d 985;People v. Rodriguez, 123 A.D.2d 405, 406, 506 N.Y.S.2d 469, lv. denied, 69 N.Y.2d 832, 513 N.Y.S.2d 1040, 506 N.E.2d 551).(Appeal from Judgment of Ontario County Court, Henry, Jr., J.--Criminal Sale Controlled Substance, 3rd Degree.)

Judgment unanimously affirmed....