Opinion
345.1 KA 20-00442
07-17-2020
The PEOPLE of the State of New York, Respondent, v. Eric MITCHELL, Defendant-Appellant. (Appeal No. 2.)
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the resentence so appealed from is unanimously modified on the law by vacating the forfeiture of $2,207, and as modified the resentence is affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of two counts of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16[1], [12] ) and, in appeal No. 2, defendant appeals from the resentence on that conviction. We note at the outset that, inasmuch as the sentence in appeal No. 1 was superseded by the resentence in appeal No. 2, the appeal from the judgment in appeal No. 1 insofar as it imposed sentence must be dismissed (see People v. Primm , 57 A.D.3d 1525, 1525, 870 N.Y.S.2d 188 [4th Dept. 2008], lv denied 12 N.Y.3d 820, 881 N.Y.S.2d 27, 908 N.E.2d 935 [2009] ). In addition, although the notice of appeal in appeal No. 1 relates to the judgment rendered on July 25, 2017, and not the resentence on October 10, 2017, we exercise our discretion to treat the notice of appeal as also including an appeal from the resentence (see People v. Hennigan [Appeal No. 1], 145 A.D.3d 1528, 1528, 42 N.Y.S.3d 917 [4th Dept. 2016], lv denied 29 N.Y.3d 998, 57 N.Y.S.3d 719, 80 N.E.3d 412 [2017]; see also CPL 460.10[6] ).
In appeal No. 1, defendant contends that County Court erred in refusing to suppress evidence obtained during a search of his apartment on the ground that the search warrant for his apartment was issued by a court without preliminary jurisdiction to do so (see CPL 1.20[25] ; 690.35[2][a] ). We agree with defendant that the waiver of his right to appeal is invalid and thus does not preclude us from reviewing that contention (see People v. Thomas , 34 N.Y.3d 545, 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ). We nevertheless conclude that defendant explicitly waived that contention, which implicates a court's preliminary jurisdiction as opposed to a court's trial jurisdiction, inasmuch as defense counsel informed the court at a prior appearance that he did not intend to make a motion on the ground that the issuing court lacked such authority here (cf. People v. Jackson , 18 N.Y.3d 738, 741, 944 N.Y.S.2d 715, 967 N.E.2d 1160 [2012] ; see also CPL 1.20[24-25] ; People v. Hickey , 40 N.Y.2d 761, 762, 390 N.Y.S.2d 42, 358 N.E.2d 868 [1976] ; see generally People v. Jones , 79 A.D.3d 1665, 1665, 917 N.Y.S.2d 774 [4th Dept. 2010] ).
We agree with defendant in appeal No. 2, however, that the court erred in ordering civil forfeiture as a component of defendant's resentence (see People v. Carmichael , 123 A.D.3d 1053, 1053, 999 N.Y.S.2d 476 [2d Dept. 2014] ; People v. Sanders , 289 A.D.2d 1019, 1020, 735 N.Y.S.2d 302 [4th Dept. 2001] ). Inasmuch as that portion of the resentence is illegal (see Sanders , 289 A.D.2d at 1020, 735 N.Y.S.2d 302 ), defendant was not required to preserve his challenge to it (see generally People v. John P. , 294 A.D.2d 951, 952, 741 N.Y.S.2d 785 [4th Dept. 2002] ). We therefore modify the resentence accordingly.