| People v Leary |
| 2010 NY Slip Op 01190 [70 AD3d 1394] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Isaac Leary,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedOctober 23, 2008. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea ofcriminal possession of a controlled substance in the first degree (Penal Law § 220.21 [1]).He contends that County Court erred in denying from the bench his request for a Frankshearing (see Franks v Delaware, 438 US 154 [1978]), which was contained in thatpart of his omnibus motion seeking suppression of contraband seized by the police pursuant to asearch warrant. We reject that contention. "A guilty plea generally results in a forfeiture of theright to appellate review of any nonjurisdictional defects in the proceedings" (People vFernandez, 67 NY2d 686, 688 [1986]; see People v Black, 185 AD2d 609 [1992]),and the exception set forth in CPL 710.70 (2) allowing appellate review with respect to ordersthat "finally den[y] a motion to suppress evidence" is not applicable because defendant pleadedguilty before the court issued such an order.
We conclude, in any event, that the court properly denied defendant's request for aFranks hearing. Although defendant challenged the veracity of statements made by apolice officer in support of the search warrant application, we conclude that the remaininginformation in the warrant application, apart from those statements, provided probable cause tosupport the issuance of the search warrant (see People v Plevy, 52 NY2d 58, 66 [1980];People v Ippolito, 226 AD2d 285 [1996], lv denied 88 NY2d 966 [1996]; seegenerally People v Tambe, 71 NY2d 492, 505 [1988]). Probable cause to search theresidence in question arose from, inter alia, the admission by defendant to the police followinghis arrest that there was approximately a kilogram of cocaine in a safe located inside theresidence that the police had observed him leaving minutes before his arrest.
Defendant further contends that the court erred in refusing to conduct a probable causehearing. There is no indication in the record, however, that defendant specifically requested sucha hearing. In [*2]any event, defendant forfeited that contention bypleading guilty before a suppression hearing was held or an order was entered denying anyalleged request for a hearing (see CPL 710.70 [2]). Present—Smith, J.P.,Peradotto, Lindley, Green and Gorski, JJ.