| People v Williams |
| 2011 NY Slip Op 09397 [90 AD3d 1514] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Charles Williams, Also Known as Cash,Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), renderedNovember 18, 2010. The judgment convicted defendant, upon his plea of guilty, of criminal saleof a controlled substance in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of twocounts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1]), defendant contends that the indictment should be dismissed because he appeared before thegrand jury in shackles and handcuffs. Although that contention survives the guilty plea (see People v Crumpler, 70 AD3d1396 [2010], lv denied 14 NY3d 839 [2010]; People v Gilmore, 12 AD3d 1155, 1155-1156 [2004]), it "is notpreserved for our review because defendant did not object to appearing before the grand jury inthat manner or request cautionary instructions with respect to that appearance" (People v Abron, 37 AD3d 1163[2007], lv denied 8 NY3d 980 [2007]; see People v Robinson, 49 AD3d 1269, 1270 [2008], lvdenied 10 NY3d 869 [2008]; seegenerally People v Johnston, 43 AD3d 1273, 1274 [2007], lv denied 9 NY3d1007 [2007]). Further, defendant abandoned that contention by pleading guilty before CountyCourt decided that part of his motion seeking to dismiss the indictment on the ground that heappeared before the grand jury in shackles and handcuffs (see People v Barker [appealNo. 1], 254 AD2d 730 [1998], lv denied 93 NY2d 870 [1999]; see generally People vFortin, 289 AD2d 590, 591 [2001], lv denied 97 NY2d 754 [2002]). By pleadingguilty, defendant forfeited his further contention that he was denied his right to testify before thegrand jury based on the prosecutor's refusal to provide him with notice of all charges the grandjury would consider (see People vGray, 62 AD3d 1256 [2009]; People v Hoeft, 42 AD3d 968, 969 [2007], lv denied 9NY3d 962 [2007]; People vWinchester, 38 AD3d 1336, 1337 [2007], lv denied 9 NY3d 853 [2007]). In anyevent, that contention is without merit. Present—Centra, J.P., Peradotto, Carni, Lindleyand Sconiers, JJ.