| People v Dudden |
| 2016 NY Slip Op 03331 [138 AD3d 1452] |
| April 29, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMark Dudden, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of counsel), fordefendant-appellant.
Mark Dudden, defendant-appellant pro se.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered November 1, 2012. The judgment convicted defendant, upon his plea of guilty,of criminal sale of a controlled substance in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of criminal sale of a controlled substance in the second degree (Penal Law§ 220.41 [1]). Although we agree with defendant that the waiver of theright to appeal is invalid because " 'the minimal inquiry made by County Courtwas insufficient to establish that the court engage[d] the defendant in an adequatecolloquy to ensure that the waiver of the right to appeal was a knowing and voluntarychoice' " (People vJones, 107 AD3d 1589, 1589-1590 [2013], lv denied 21 NY3d 1075[2013]; see People v AmirW., 107 AD3d 1639, 1640 [2013]), we nevertheless affirm the judgment.
Defendant contends that his plea should be vacated because he was coerced intopleading guilty by the court's decision to change the date of his trial. Defendant failed topreserve that contention for our review (see People v Boyd, 101 AD3d 1683, 1683 [2012]; People v Lando, 61 AD3d1389, 1389 [2009], lv denied 13 NY3d 746 [2009]), and this case does notfall within the narrow exception to the preservation requirement (see People v Carlisle, 50 AD3d1451, 1451 [2008], lv denied 10 NY3d 957 [2008]; People v Gray, 21 AD3d1398, 1399 [2005]; cf.People v Lang, 127 AD3d 1253, 1255 [2015]; see generally People vLopez, 71 NY2d 662, 666 [1988]). Contrary to defendant's further contention, thecourt properly refused to suppress identification evidence upon determining that theundercover officer's identification of defendant was merely confirmatory (seegenerally People v Wharton, 74 NY2d 921, 922-923 [1989]). We also rejectdefendant's challenge to the severity of the sentence.
In his pro se supplemental brief, defendant contends that the court erred in denyinghis request for a Darden hearing. We reject that contention. Where, as here,information is received from a confidential informant but the police officer thereaftermakes his or her own observations of criminal activity without further employment of theinformant, those observations form the basis for probable cause to arrest, rendering aDarden hearing unnecessary (see People v Darden, 34 NY2d 177,180-181 [1974], rearg denied 34 NY2d 995 [1974]; People v Long, 100 AD3d1343, 1345-1346 [2012], lv denied 20 NY3d 1063 [2013]).
Defendant further contends in his pro se supplemental brief that the court erred inrefusing to dismiss or reduce the indictment because the People were improperlypermitted to amend the indictment. "[B]y his guilty plea, defendant forfeited anychallenge to the alleged amendment of the indictment" (People v Torres, 117 AD3d1497, 1498 [2014], lv denied 24 NY3d 965 [2014]). [*2]Finally, we conclude that defendant's remaining contentionin his pro se supplemental brief lacks merit. Present—Smith, J.P., DeJoseph,NeMoyer, Troutman and Scudder, JJ.