| People v Elder |
| 2019 NY Slip Op 04784 [173 AD3d 1344] |
| June 13, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Kevin Elder, Appellant. |
Craig S. Leeds, Albany, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Garry, P.J. Appeals from two judgments of the County Court of Ulster County (Williams, J.),rendered October 13, 2016 and October 27, 2016, convicting defendant upon his plea of guilty ofthe crime of criminal possession of a controlled substance in the third degree (two counts).
On June 6, 2015, officers of the Ulster County Sheriff's Department stopped a vehicle inwhich defendant was a passenger. During the stop, another individual, who appeared to have justexited the vehicle, was observed nearby walking toward an apartment building. When confrontedby police, this individual stated that she was attempting to enter the apartment of defendant, withwhom she had traveled to Brooklyn the previous day. She stated that defendant had procureddrugs during the trip, that she had been in the apartment the prior evening into the early morninghours, and that she had seen defendant secure drugs within the premises. Based on thatinformation, police obtained a warrant to search defendant's apartment, where they seized heroin,cocaine and drug paraphernalia. Defendant was charged with two counts of criminal possessionof a controlled substance in the third degree, two counts of criminal possession of a controlledsubstance in the fourth degree and two counts of criminally using drug paraphernalia in thesecond degree. Defendant moved to suppress the evidence seized from his apartment. CountyCourt denied the motion following a hearing, concluding, as relevant here, that probable causeexisted to support the search warrant, and that a protective sweep conducted by officers prior toobtaining the search warrant did not taint the subsequent search. Defendant thereafter pleadedguilty to two counts of criminal possession of a controlled substance in the third degree. CountyCourt did not make a specific promise as to sentence, but did agree that defendant would not besentenced as a persistent felony offender. County Court ultimately imposed two concurrentsentences of eight years in prison followed by three years of postrelease supervision. Defendantappeals.
Initially, we are unpersuaded that County Court should have granted defendant's motion tosuppress the evidence seized from his apartment. As defendant raised the legality of theunderlying traffic stop and his resulting detention for the first time on appeal, that issue is notpreserved for our review (see People vAshley, 45 AD3d 987, 988 [2007], lv denied 10 NY3d 761 [2008]). With respectto the information underlying the search warrant application, we find that the court properlydetermined that the informant's statements to police against her penal interest—includingher admission that she possessed drug paraphernalia and had been involved in defendant's drugtrafficking—supported a finding of reliability to establish probable cause (see People v Collins, 35 AD3d896, 897 [2006]; People vWalker, 27 AD3d 899, 900 [2006], lv denied 7 NY3d 764 [2006]). We alsoreject defendant's assertion that the protective sweep of the premises tainted the subsequentsearch. County Court found that the warrant was not yet signed or present at the time of theinitial entry, but that no evidence was observed or seized at that time. The search warrant wasbased upon independently sourced information gathered before the sweep was conducted (seePeople v Arnau, 58 NY2d 27, 33 [1982]). Although defendant contends that the testimonyproffered by the People lacked credibility, we defer to the court's findings, including its findingthat the application supporting the search warrant was present at the time of the search (see People v Jones, 156 AD3d960, 962 [2017], lv denied 30 NY3d 1116 [2018]; People v Morris, 105 AD3d 1075,1077-1078 [2013], lv denied 22 NY3d 1042 [2013]). Defendant's remaining contentionsregarding the denial of his suppression motion have been examined and found to lack merit.
"Defendant's claims that his guilty plea was not voluntary and that counsel providedineffective assistance with respect to the plea are unpreserved for our review, as he did not raisethem in an appropriate postallocution motion" (People v Tetreault, 152 AD3d 1081, 1082 [2017] [citationsomitted], lv denied 30 NY3d 984 [2017]). Defendant's statement that he took "psychmedication, but [hadn't] been taking them" did not trigger the narrow exception to thepreservation requirement. County Court elicited defendant's assurance that he was having notrouble understanding the proceedings, as well as defense counsel's opinion that defendant wasable to make a knowing, intelligent and voluntary decision, and defendant did not otherwisemake any statements during the plea proceeding that cast doubt upon his guilt or otherwise calledinto question the voluntariness of his plea (see People v Lopez, 71 NY2d 662, 666[1988]; People v Taft, 169 AD3d1266, 1267 [2019]; People vGumbs, 169 AD3d 1119, 1119 [2019]). To the extent that defendant's claims ofineffective assistance of counsel are unrelated to the voluntariness of his plea, they are foreclosedby his guilty plea (see People vKaid, 163 AD3d 1151, 1152 [2018], lv denied 32 NY3d 1005 [2018]; People v Williams, 145 AD3d1188, 1191 [2016], lv denied 29 NY3d 1002 [2017]).
We reject defendant's contention that he received an illegal sentence. County Court initiallyimposed a sentence upon only one of the two counts of which defendant was convicted.Defendant was thereafter returned to court, and the court pronounced sentence upon the secondcount, imposing a concurrent prison term of eight years with three years of postreleasesupervision. Defendant cites no authority in support of his argument that this sentencing wasillegal, and it was clearly necessary to pronounce sentence for each of the convictions (seePeople v Ortega, 101 AD2d 661, 662 [1984]). We do not find the sentence to be harsh orexcessive. In accord with the plea agreement, County Court declined to sentence defendant as apersistent felony offender. Defendant failed to preserve his contention that the sentence imposedpenalized him for rejecting an earlier plea offer of six years in prison (see People v Watson, 150 AD3d1384, 1387 [2017], lv denied 29 NY3d 1135 [2017]) and, in any event, the recorddoes not support that claim. Given defendant's extensive criminal history, including multiplefelonies, we find no abuse of discretion or extraordinary circumstances warranting a reduction ofthe sentence in the interest of justice (see People v Quintana, 159 AD3d 1122, 1128 [2018], lvdenied 31 NY3d 1086 [2018]).
Egan Jr., Clark, Mulvey and Pritzker, JJ., concur. Ordered that the judgments areaffirmed.