Opinion
1178 KA 19-01784
12-23-2020
The PEOPLE of the State of New York, Respondent, v. Michael A. LOPEZ, Defendant-Appellant.
TODD G. MONAHAN, LITTLE FALLS, FOR DEFENDANT-APPELLANT. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN, FOR RESPONDENT.
TODD G. MONAHAN, LITTLE FALLS, FOR DEFENDANT-APPELLANT.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN, FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal 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] ), defendant contends that his guilty plea was the result of undue coercion by the court. Defendant failed to raise that contention in County Court and he therefore failed to move to withdraw the plea or vacate the judgment of conviction on that ground. Thus, he failed to preserve that contention for our review (see People v. Ingram , 188 A.D.3d 1650, 1650, 132 N.Y.S.3d 353 [4th Dept. 2020] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).
Defendant's further contention that he was denied effective assistance of counsel does not survive his plea of guilty 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" ( Ingram , 188 A.D.3d at 1650, 132 N.Y.S.3d 353 [internal quotation marks omitted] ). To the extent that defendant's contention survives the plea, it concerns matters outside the record that must be raised by way of a motion pursuant to CPL article 440 (see People v. Culver , 94 A.D.3d 1427, 1428, 942 N.Y.S.2d 832 [4th Dept. 2012], lv denied 19 N.Y.3d 1025, 953 N.Y.S.2d 558, 978 N.E.2d 110 [2012] ; People v. Dimmick , 53 A.D.3d 1113, 1114, 862 N.Y.S.2d 687 [4th Dept. 2008], lv denied 11 N.Y.3d 831, 868 N.Y.S.2d 606, 897 N.E.2d 1090 [2008] ).
We reject defendant's final contention, that the court erred in refusing to suppress physical evidence obtained following a traffic stop. The officer who stopped the vehicle in which defendant was a passenger was justified in doing so in order to execute a valid arrest warrant for defendant (see generally People v. Bushey , 29 N.Y.3d 158, 164, 53 N.Y.S.3d 604, 75 N.E.3d 1165 [2017] ) and, furthermore, the stop was justified because the officer observed the driver throw a cigarette butt out of the window in violation of the Vehicle and Traffic Law (see § 1220 [a]; People v. Robinson , 97 N.Y.2d 341, 349, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001] ; People v. Hightower , 186 A.D.3d 926, 928-929, 128 N.Y.S.3d 699 [3d Dept. 2020], lv denied 35 N.Y.3d 1113, 158 N.E.3d 539 [2020] ; People v. Wallace , 153 A.D.3d 1632, 1633, 62 N.Y.S.3d 242 [4th Dept. 2017] ). The police lawfully searched the vehicle after receiving the owner's voluntary consent (see People v. Tantao , 178 A.D.3d 1391, 1393, 117 N.Y.S.3d 397 [4th Dept. 2019], lv denied 35 N.Y.3d 945, 124 N.Y.S.3d 275, 147 N.E.3d 545 [2020] ; People v. Rivera , 83 A.D.3d 1370, 1372, 919 N.Y.S.2d 691 [4th Dept. 2011], lv denied 17 N.Y.3d 904, 933 N.Y.S.2d 659, 957 N.E.2d 1163 [2011] ).