| People v Moshier |
| 2013 NY Slip Op 06592 [110 AD3d 832] |
| October 9, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Thomas A. Moshier, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County(Greller, J.), rendered May 27, 2011, convicting him of criminal sale of a controlledsubstance in the third degree (two counts), criminal possession of a controlled substancein the third degree, and criminal possession of a weapon in the fourth degree, upon hisplea of guilty, and imposing sentence. The appeal brings up for review the denial, after ahearing (Greller, J.), of that branch of the defendant's omnibus motion which was tosuppress identification testimony, and the denial, without a hearing (Forman, J.), of thatbranch of the same motion which was to controvert a search warrant and to suppressphysical evidence seized in the execution thereof.
Ordered that the judgment is affirmed.
The defendant was arrested following two audiotaped drug purchases by aconfidential informant and a search of the defendant's residence pursuant to a searchwarrant, during which a shotgun and a large number of glassine envelopes containingheroin were recovered.
The defendant's contention that the County Court should have suppressed theproffered identification testimony of the confidential informant based on certainallegedly suggestive statements made by a police officer to the informant before and afterhe viewed a photo array is unpreserved for appellate review, since the defendant failed toadvance his current arguments at the suppression hearing (see CPL 470.05 [2]; People v Acevedo, 84 AD3d1390 [2011]; People vLago, 60 AD3d 784 [2009]; People v Carter, 44 AD3d 677 [2007]). In any event, thecontentions are without merit (see People v Guitierres, 82 AD3d 1116 [2011]; Peoplev Negron, 238 AD2d 444 [1997]). As the defendant failed to rebut the People'sinitial showing that the police conduct was reasonable and that the pretrial identificationprocedure was not unduly suggestive, the People were not required to establish anindependent source for the proffered in-court identification (see People v Chipp,75 NY2d 327, 335 [1990]).
We find unpersuasive the defendant's contention in his pro se supplemental brief thatthe County Court erred in denying, without a hearing, that branch of his omnibus motionwhich was to controvert a search warrant and to suppress certain physical evidenceseized in its execution. The defendant's omnibus motion failed to make the requisitepreliminary showing that the affidavit in support of the warrant contained falsestatements (see People v Alfinito, 16 NY2d 181 [1965]; People v [*2]McGeachy, 74 AD3d 989 [2010]; People v Tordella, 37 AD3d500 [2007]). Moreover, the defendant never renewed that branch of his omnibusmotion, despite being granted leave by the court to do so following his receipt of aredacted copy of the supporting affidavit. Thus, the defendant's present argumentsalleging a lack of probable cause for issuance of the search warrant are improperly raisedfor the first time on appeal (see CPL 470.05 [2]; People v Scott, 85 AD3d827 [2011]; People v Toellner, 299 AD2d 567 [2002]) and, in any event, arewithout merit.
The defendant's additional contention in his pro se supplemental brief that his trialcounsel was ineffective with regard to certain pretrial motion practice is not properlybefore this Court, since "[b]y pleading guilty, the defendant forfeited appellate review ofhis claims of ineffective assistance of counsel that did not directly involve the pleabargaining process and sentence" (People v Fakhoury, 103 AD3d 664, 664 [2013]; seePeople v Petgen, 55 NY2d 529, 535 n 3 [1982]; People v Patterson, 106 AD3d 757 [2013]; People v Chase, 101 AD3d1141 [2012]; People vJones, 89 AD3d 1037 [2011]; People v Turner, 40 AD3d 1018 [2007]).
Finally, the defendant's pro se contention regarding the propriety of his adjudicationas a predicate felon is unpreserved for appellate review, since "he did not contest orcontrovert his status as a second felony offender when he had the opportunity to do so atthe sentencing hearing" (Peoplev Delston, 30 AD3d 536, 536 [2006]; see People v Smith, 73 NY2d 961[1989]; People v Miles, 95AD3d 1038 [2012]). In any event, the defendant's adjudication as a second felonyoffender was proper (see People v Parmer, 231 AD2d 867 [1996]; People vPena, 158 AD2d 480 [1990]). Mastro, J.P., Dickerson, Chambers and Roman, JJ.,concur.