| People v Ball |
| 2017 NY Slip Op 05765 [152 AD3d 973] |
[*1]
| 1 The People of the State of New York, Respondent, v Austin L.Ball, Appellant. |
Adam G. Parisi, Schenectady, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Washington County (McKeighan,J.), rendered June 15, 2012, convicting defendant upon his plea of guilty of the crime ofattempted promoting prison contraband in the first degree.
Defendant, an inmate, testified in a criminal case brought against another inmate that he, andnot the inmate on trial, was the individual who had possessed certain improvised weapons at thecorrectional facility where they were housed. As a result of defendant's testimony, the otherinmate was acquitted of the charges against him, and defendant was then charged by indictmentwith three counts of promoting prison contraband in the first degree. After the People provideddefendant with notice that they intended to offer his prior testimony at trial, defendant moved tosuppress that testimony. In a second motion, defendant sought to disqualify the WashingtonCounty District Attorney's office and requested that County Court appoint a special prosecutor.County Court denied defendant's second motion and, before a hearing was held on the firstmotion, defendant pleaded guilty to attempted promoting prison contraband in the first degree.He now appeals.
Defendant does not raise any argument regarding the validity of his guilty plea. Instead,defendant's argument focuses solely on the undecided suppression motion and County Court'sdenial of his second motion. However, by pleading guilty before a suppression hearing was held,"defendant precluded the making of a record and, in consequence, foreclosed the possibility ofappellate review" of all claims related to the pending suppression motion (People vFernandez, 67 NY2d 686, 688 [1986]; see People v Whitted, 12 AD3d 840, 841 [2004], lv denied4 NY3d [*2]769 [2005]; People v Whitehurst, 291 AD2d83, 87 [2002], lv denied 98 NY2d 642 [2002]). In addition, defendant's contention thatCounty Court erred in denying his motion to disqualify the Washington County DistrictAttorney's office and appoint a special prosecutor constitutes the type of nonjurisdictional claim"which defendant must be held to have waived by a guilty plea" (People v Gryner, 116 AD3d 1247,1248 [2014] [internal quotation marks, brackets and citations omitted]; see People v Golgoski, 145 AD3d1195, 1195-1196 [2016], lv denied 28 NY3d 1184 [2017]; People v Abdullah, 122 AD3d958, 959 [2014], lv denied 24 NY3d 1218 [2015]; People v Cooper, 226AD2d 1115, 1115-1116 [1996], lv denied 88 NY2d 982 [1996]).
McCarthy, J.P., Egan Jr., Lynch and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.