People v. Wisniewski, 548

Citation160 A.D.3d 1478,72 N.Y.S.3d 915 (Mem)
Decision Date27 April 2018
Docket Number548,KA 16–02288
Parties The PEOPLE of the State of New York, Respondent, v. Frank K. WISNIEWSKI, Defendant–Appellant.
CourtNew York Supreme Court Appellate Division

NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (MARSHALL A. KELLY OF COUNSEL), FOR DEFENDANTAPPELLANT.

DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, LINDLEY, AND NEMOYER, JJ.

MEMORANDUM AND ORDERMemorandum:

Defendant appeals from a judgment convicting him upon his guilty plea of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1] ) and criminal possession of a controlled substance in the third degree (§ 220.16[1] ). Defendant's contention that County Court erred in failing to conduct an audibility hearing and to render a decision thereon does not survive his guilty plea (see People v. Gillett, 105 A.D.3d 1444, 1444, 963 N.Y.S.2d 906 [4th Dept. 2013] ). By pleading guilty, defendant forfeited review of the merits of his contention regarding the audibility of certain evidence (see People v. Dunkins, 231 A.D.2d 587, 588, 647 N.Y.S.2d 107 [2d Dept. 1996], lv denied 89 N.Y.2d 863, 653 N.Y.S.2d 286, 675 N.E.2d 1239 [1996] ; see also People v. Alvarado, 103 A.D.3d 1101, 1101, 958 N.Y.S.2d 554 [4th Dept. 2013], lv denied 21 N.Y.3d 910, 966 N.Y.S.2d 362, 988 N.E.2d 891 [2013] ).

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

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