People v Farrell

People v Farrell 2007 NY Slip Op 01485 [37 AD3d 349] February 22, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 11, 2007

The People of the State of New York, Respondent,
v
David Farrell, Appellant.

—[*1] Donald E. Cameron, New York, for appellant. Robert M. Morgenthau, District Attorney, New York (Karen Schlossberg of counsel), for respondent.

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered November 17, 2004, convicting defendant, upon his plea of guilty, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 2½ to 5 years, unanimously affirmed.

The court did not finally deny defendant's motion to suppress physical evidence (see CPL 710.70 [2]; People v Rizzo, 5 AD3d 924, 925 [2004], lv denied 3 NY3d 646 [2004]). The record indicates that the court was prepared to receive and consider the supplementary affidavit that defendant offered to provide. Therefore, defendant's ensuing guilty plea waived the suppression issue, and the exception in CPL 710.70 (2) does not apply (see People v Fernandez, 67 NY2d 686, 688 [1986]). In any event, while defendant's motion papers may have been sufficient to allege standing to challenge a search and seizure, they were insufficient to raise a factual issue warranting a hearing. Concur—Mazzarelli, J.P., Saxe, Marlow, Nardelli and Gonzalez, JJ.