People v Otto

2017 NY Slip Op 02849 [149 AD3d 1275]

April 13, 2017

Appellate Division, Third Department

As corrected through Wednesday, May 31, 2017

[*1]

The People of the State of New York, Respondent, v Kevin A.Otto, Appellant.

Lisa A. Burgess, Indian Lake, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.

Mulvey, J. Appeal from a judgment of the County Court of Clinton County (McGill, J.),rendered May 28, 2015, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the third degree.

In October 2014, defendant was charged by indictment with two counts of criminalpossession of a controlled substance in the third degree, one count of criminal possession ofmarihuana in the fourth degree and one count of endangering the welfare of a child. Defendantthereafter pleaded guilty to criminal possession of a controlled substance in the third degree andwas sentenced to six months in jail, with five years of probation.

On appeal, defendant contends that County Court erred in failing to suppress the physicalevidence (cocaine and marihuana) seized by the police because the seizure arose from an illegaldetention following a traffic stop. Defendant filed an omnibus motion in December 2014, and aHuntley hearing was held on February 19, 2015 to determine the admissibility ofdefendant's statements to the police. County Court issued a decision and order on February 23,2015, which made no ruling with regard to the admissibility of the physical evidence. The Peoplemade a plea offer on March 25, 2015, and defendant entered a guilty plea on March 26, 2015 andwas sentenced on May 28, 2015. We find that defendant forfeited his right to appellate reviewregarding the suppression issue because he entered his guilty plea before County Court renderedits decision on the motion to suppress the physical evidence (see People v Rodriguez, 118 AD3d 1182, 1182-1183 [2014], lvdenied 24 NY3d 964 [2014]; People v Brabham, 112 [*2]AD3d 1066, 1067 [2013]; People v Morrison, 106 AD3d 1201, 1202 [2013], lv denied23 NY3d 1065 [2014]).

Peters, P.J., Lynch, Rose and Devine, JJ., concur. Ordered that the judgment is affirmed.