

People v Lovely (2017 NY Slip Op 07571)





People v Lovely


2017 NY Slip Op 07571


Decided on October 31, 2017


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on October 31, 2017

Richter, J.P., Webber, Kern, Moulton, JJ.


4841 5707/13

[*1]The People of the State of New York Respondent,
vFreeman Lovely, Defendant-Appellant.


Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Megan DeMarco of counsel), for respondent.

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered January 6, 2015, as amended February 17, 2015, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to a term of 4½ years, unanimously affirmed.
Regardless of whether defendant made a valid waiver of his right to appeal, we find that the court properly denied defendant's suppression motion. The stop of defendant's van was lawful even though one of the two bases for the stop mentioned in the officers' hearing testimony constituted an objectively reasonable mistake of law (see People v Guthrie, 25 NY3d 130, 138 [2015]), and defendant's remaining suppression arguments are unavailing.
Regardless of the effect of defendant's waiver of the right to appeal, defendant failed to preserve his claim that his out-of-state conviction was not the equivalent of a New York felony, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits (see People v Santiago, 143 AD3d 545 [1st Dept 2016], lv denied 28 NY3d 1127 [2016]; People v West, 58 AD3d 483 [1st Dept 2009], lv denied 12 NY3d 822 [2009]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 31, 2017
CLERK


