Opinion
2013-02-1
The PEOPLE of The State of New York, Respondent, v. Jose ALVARADO, Defendant–Appellant.
Cara A. Waldman, Fairport, for Defendant–Appellant. Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of Counsel), for Respondent.
Cara A. Waldman, Fairport, for Defendant–Appellant. Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.
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 A.D.3d 1394, 1395, 894 N.Y.S.2d 682,lv. denied14 N.Y.3d 889, 903 N.Y.S.2d 777, 929 N.E.2d 1012, quoting People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838). “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 N.Y.2d 227, 230, 715 N.Y.S.2d 369, 738 N.E.2d 773). 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. Jimenez, 277 A.D.2d 956, 956–957, 716 N.Y.S.2d 635,lv. denied96 N.Y.2d 784, 725 N.Y.S.2d 649, 749 N.E.2d 218), as are challenges to evidentiary rulings made during trial ( see People v. Davis, 99 A.D.3d 1228, 1229, 951 N.Y.S.2d 808).
Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.