Opinion
07-20-2017
The PEOPLE of the State of New York, Respondent, v. Austin L. BALL, Appellant.
Adam G. Parisi, Schenectady, for appellant. J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), for respondent.
Adam G. Parisi, Schenectady, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), for respondent.
Before: McCARTHY, J.P., EGAN JR., LYNCH, ROSE and MULVEY, JJ.
ROSE, J.Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered June 15, 2012, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.
Defendant, an inmate, testified in a criminal case brought against another inmate that he, and not the inmate on trial, was the individual who had possessed certain improvised weapons at the correctional facility where they were housed. As a result of defendant's testimony, the other inmate was acquitted of the charges against him, and defendant was then charged by indictment with three counts of promoting prison contraband in the first degree. After the People provided defendant with notice that they intended to offer his prior testimony at trial, defendant moved to suppress that testimony. In a second motion, defendant sought to disqualify the Washington County District Attorney's office and requested that County Court appoint a special prosecutor. County Court denied defendant's second motion and, before a hearing was held on the first motion, defendant pleaded guilty to attempted promoting prison contraband in the first degree. He now appeals.
Defendant does not raise any argument regarding the validity of his guilty plea. Instead, defendant's argument focuses solely on the undecided suppression motion and County Court's denial of his second motion. However, by pleading guilty before a suppression hearing was held, "defendant precluded the making of a record and, in consequence, foreclosed the possibility of appellate review" of all claims related to the pending suppression motion ( People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 [1986] ; see People v. Whitted, 12 A.D.3d 840, 841, 784 N.Y.S.2d 690 [2004], lv. denied 4 N.Y.3d 769, 792 N.Y.S.2d 12, 825 N.E.2d 144 [2005] ; People v. Whitehurst, 291 A.D.2d 83, 87, 737 N.Y.S.2d 152 [2002], lv. denied 98 N.Y.2d 642, 744 N.Y.S.2d 771, 771 N.E.2d 844 [2002] ). In addition, defendant's contention that County Court erred in denying his motion to disqualify the Washington County District Attorney's office and appoint a special prosecutor constitutes the type of nonjurisdictional claim "which defendant must be held to have waived by a guilty plea" (People v. Gryner, 116 A.D.3d 1247, 1248, 983 N.Y.S.2d 740 [2014] [internal quotation marks, brackets and citations omitted]; see People v. Golgoski, 145 A.D.3d 1195, 1195–1196, 42 N.Y.S.3d 481 [2016], lv. denied 28 N.Y.3d 1184, 52 N.Y.S.3d 711, 75 N.E.3d 103 [2017] ; People v. Abdullah, 122 A.D.3d 958, 959, 995 N.Y.S.2d 413 [2014], lv. denied 24 N.Y.3d 1218, 4 N.Y.S.3d 606, 28 N.E.3d 42 [2015] ; People v. Cooper, 226 A.D.2d 1115, 1115–1116, 642 N.Y.S.2d 131 [1996], lv. denied 88 N.Y.2d 982, 649 N.Y.S.2d 389, 672 N.E.2d 615 [1996] ).
ORDERED that the judgment is affirmed.
McCARTHY, J.P., EGAN JR., LYNCH and MULVEY, JJ., concur.