| People v Gillett |
| 2013 NY Slip Op 02947 [105 AD3d 1444] |
| April 26, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JodyB. Gillett, Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.),rendered March 21, 2012. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of criminal possession of a weapon in the third degree (Penal Law § 265.02[1]). Defendant's contention that County Court erred in failing to conduct a hearing onhis challenge to the voluntariness of his statements to the police does not survive hisguilty plea. "A guilty plea generally results in a forfeiture of the right to appellate reviewof any nonjurisdictional defects in the proceedings" (People v Fernandez, 67NY2d 686, 688 [1986]), and the exception set forth in CPL 710.70 (2) does not applyhere because defendant pleaded guilty before the court issued a decision on hissuppression motion (seegenerally People v Elmer, 19 NY3d 501, 507-508 [2012]). Defendant'schallenge to the legal sufficiency of the evidence before the grand jury with respect to thethird count of the indictment likewise does not survive the guilty plea (see People v Smith, 28 AD3d1202, 1202 [2006], lv denied 7 NY3d 818 [2006]; see generally People vIannone, 45 NY2d 589, 600-601 [1978]). Finally, defendant's contention that he wasdenied effective assistance of counsel "does not survive his guilty plea . . .because there was no showing that the plea bargaining process was infected by [the]allegedly ineffective assistance or that defendant entered the plea because of hisattorney['s] allegedly poor performance" (People v Dean, 48 AD3d 1244, 1245 [2008], lv denied10 NY3d 839 [2008] [internal quotation marks omitted]). Present—Scudder,P.J., Peradotto, Lindley, Valentino and Martoche, JJ.