| People v Brabham |
| 2013 NY Slip Op 08297 [112 AD3d 1066] |
| December 12, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JamesE. Brabham, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (David M. Petrush of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Broome County (Cawley,J.), rendered July 6, 2011, convicting defendant upon his plea of guilty of the crime ofattempted criminal possession of a weapon in the second degree.
In October 2009, defendant's parole officer made an unannounced home visit todefendant's apartment in the City of Binghamton, Broome County. After a delay ofseveral minutes, defendant answered the door, accompanied by a young child. Theofficer followed the child to a back bedroom where he observed in plain view packagesof what appeared to be marihuana.[FN*] The child told the officer that defendant had put the marihuana in the room and, pointingtoward a bag or satchel, stated that defendant had also placed it in the room before lettingthe officer into the apartment. The officer looked into the satchel, saw a gun andcontacted police. The satchel was later found to contain marihuana, crack cocaine andammunition. Marihuana was also found in the kitchen.
Defendant was arrested and charged with various crimes arising from his possessionof [*2]drugs and a weapon. Following a suppressionhearing, but before County Court had rendered a decision on defendant's underlyingsuppression motion, he pleaded guilty to attempted criminal possession of a weapon inthe second degree in full satisfaction of the four-count indictment. In exchange for hisplea, defendant was sentenced as a second felony offender to a prison term of five yearsfollowed by five years of postrelease supervision. Defendant appeals.
As the record before us fails to indicate that defendant moved to withdraw his plea orvacate the judgment of conviction, he has failed to preserve his contention that his guiltyplea was not knowing, voluntary and intelligent (see People v White, 104 AD3d 1056, 1056 [2013], lvdenied 21 NY3d 1021 [2013]; People v Teele, 92 AD3d 972, 972 [2012]). The exceptionto the preservation requirement does not apply, as nothing in the plea colloquy calleddefendant's guilt into question; his statements established that he attempted to possess agun in a place that was not his home or business and, contrary to his contention, hisintent to use the gun unlawfully was not an element of the crime to which he pleadedguilty (see Penal Law §§ 110.00, 265.03 [3]; People v Leone, 105 AD3d1249, 1250 [2013], lv denied 21 NY3d 1017 [2013]; People v Thomas, 81 AD3d997, 998 [2011], lv denied 16 NY3d 900 [2011]).
Defendant's right to challenge the legality of the search was forfeited by the entry ofhis guilty plea before a ruling was rendered on his suppression motion (see CPL710.70 [2]; People v Fernandez, 67 NY2d 686, 688 [1986]; People v Buckler, 80 AD3d889, 890 [2011], lv denied 17 NY3d 804 [2011]; People v Adams, 31 AD3d1063, 1064-1065 [2006], lv denied 7 NY3d 845 [2006]). Finally, defendantcontends that the indictment was defective in that the claim that he exercised dominionand control over the gun, thus constructively possessing it, is inconsistent with the claimthat he did not possess the gun in his home. As this contention is, in effect, a challenge tothe sufficiency of the evidence before the grand jury, it is also precluded by his guiltyplea, in which—as previously noted—defendant unequivocallyacknowledged that he attempted to possess the gun in a place that was not his home(see People v Hansen, 95 NY2d 227, 232 [2000]; People v Herringshaw, 83AD3d 1133, 1134 [2011]; People v Melendez, 48 AD3d 960, 960 [2008], lvdenied 10 NY3d 962 [2008]).
Rose, J.P., Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: This back bedroom wasoccupied by the child and his mother, while defendant resided in a different room.