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

418
KA 12-00723
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                                 MEMORANDUM AND ORDER

JODY B. GILLETT, DEFENDANT-APPELLANT.


KELIANN M. ELNISKI, ORCHARD PARK, FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered March 21, 2012. The judgment convicted defendant,
upon his plea of guilty, of criminal possession of a weapon in the third
degree.

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

     Memorandum: Defendant appeals from a judgment convicting him upon
his plea of guilty of criminal possession of a weapon in the third
degree (Penal Law § 265.02 [1]). Defendant’s contention that County
Court erred in failing to conduct a hearing on his challenge to the
voluntariness of his statements to the police does not survive his
guilty plea. “A guilty plea generally results in a forfeiture of the
right to appellate review of any nonjurisdictional defects in the
proceedings” (People v Fernandez, 67 NY2d 686, 688), and the exception
set forth in CPL 710.70 (2) does not apply here because defendant
pleaded guilty before the court issued a decision on his suppression
motion (see generally People v Elmer, 19 NY3d 501, 507-508).
Defendant’s challenge to the legal sufficiency of the evidence before
the grand jury with respect to the third count of the indictment
likewise does not survive the guilty plea (see People v Smith, 28 AD3d
1202, 1202, lv denied 7 NY3d 818; see generally People v Iannone, 45
NY2d 589, 600-601). Finally, defendant’s contention that he was denied
effective assistance of counsel “does not survive his guilty plea . . .
because there was no showing that the plea bargaining process was
infected by [the] allegedly ineffective assistance or that defendant
entered the plea because of his attorney[’s] allegedly poor performance”
(People v Dean, 48 AD3d 1244, 1245, lv denied 10 NY3d 839 [internal
quotation marks omitted]).

Entered:   April 26, 2013                          Frances E. Cafarell
                                                   Clerk of the Court
