        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

130
KA 11-02011
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSE ALVARADO, DEFENDANT-APPELLANT.


CARA A. WALDMAN, FAIRPORT, FOR DEFENDANT-APPELLANT.

CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (KRISTYNA S. MILLS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered August 8, 2011. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal possession of a controlled substance in the
third degree (Penal Law § 220.16 [1]), defendant contends that County
Court erred in admitting certain recorded conversations in evidence at
trial before he pleaded guilty. By pleading guilty, defendant
forfeited his right to seek our review of that contention. “ ‘A
guilty plea generally results in a forfeiture of the right to
appellate review of any nonjurisdictional defects in the
proceedings’ ” (People v Leary, 70 AD3d 1394, 1395, lv denied 14 NY3d
889, quoting People v Fernandez, 67 NY2d 686, 688). “This is so
because a defendant’s ‘conviction rests directly on the sufficiency of
his plea, not on the legal or constitutional sufficiency of any
proceedings which might have led to his conviction after trial’ . . .
A guilty plea will thus . . . effect a forfeiture of the right to
revive certain claims made prior to the plea” (People v Hansen, 95
NY2d 227, 230). Here, defendant challenges the admissibility of the
recordings, both at the audibility hearing and at the trial. Issues
arising from an audibility hearing are forfeited by a plea of guilty
(see People v Jiminez, 277 AD2d 956, 956-957, lv denied 96 NY2d 784),
as are challenges to evidentiary rulings made during trial (see People
v Davis, 99 AD3d 1228, 1229).
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                                                           KA 11-02011

    Finally, the sentence is not unduly harsh or severe.




Entered:   February 1, 2013                    Frances E. Cafarell
                                               Clerk of the Court
