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

482
KA 13-01646
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DASHAWN L. RUSSELL, ALSO KNOWN AS SHAWN,
DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.

DASHAWN L. RUSSELL, DEFENDANT-APPELLANT PRO SE.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered February 15, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal sale of a controlled
substance in the third degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of criminal sale of a
controlled substance in the third degree (Penal Law § 220.39 [1]). In
appeal No. 2, he appeals from a judgment convicting him upon his plea
of guilty of criminal possession of a controlled substance in the
third degree (§ 220.16 [12]). In both appeals, defendant contends in
his main and pro se supplemental briefs that County Court should have
suppressed evidence found during a search of his residence because the
search warrant was not supported by probable cause, was overbroad, and
was not executed in a timely manner. Defendant’s challenges to the
search warrant are encompassed by his valid waiver of the right to
appeal (see People v Garland, 69 AD3d 1122, 1123, lv denied 14 NY3d
887; see also People v Frazier, 63 AD3d 1633, 1633, lv denied 12 NY3d
925). Moreover, because defendant pleaded guilty before the court
issued a suppression ruling with respect to the evidence seized from
his home pursuant to the search warrant, he forfeited the right to
raise the suppression issue on appeal (see People v Fernandez, 67 NY2d
686, 688; People v Nunez, 73 AD3d 1469, 1469, lv denied 15 NY3d 808).
Defendant’s contention in his main and pro se supplemental briefs that
he was penalized for requesting a copy of the search warrant and the
search warrant application “does not implicate the voluntariness of
                                 -2-                           482
                                                         KA 13-01646

the plea and thus it is also encompassed by his valid waiver of the
right to appeal” (People v Zolner, 90 AD3d 1551, 1552; see generally
People v Muniz, 91 NY2d 570, 573-574).

     Finally, defendant’s contention in his pro se supplemental brief
that he was denied effective assistance of counsel because defense
counsel failed to pursue a suppression hearing “ ‘does not survive
[his] plea or [his] valid waiver of the right to appeal because [he]
failed to demonstrate that the plea bargaining process was infected by
[the] allegedly ineffective assistance or that [he] entered the plea
because of [his] attorney[’s] allegedly poor performance’ ” (People v
Smith, 122 AD3d 1300, 1301; see People v Leigh, 71 AD3d 1288, 1288, lv
denied 15 NY3d 775).




Entered:   May 1, 2015                         Frances E. Cafarell
                                               Clerk of the Court
