People v Harris (Malcolm)

[*1] People v Harris (Malcolm) 2014 NY Slip Op 50670(U) Decided on April 24, 2014 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 24, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, J.
13-140

The People of the State of New York, Respondent,

against

Malcolm Harris, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Matthew A. Sciarrino, J.), rendered December 12, 2012, convicting him, upon a plea of guilty, of disorderly conduct, and imposing sentence.

Per Curiam.

Judgment of conviction (Matthew A. Sciarrino, J.), rendered December 12, 2012, affirmed.

Convicted of disorderly conduct (see Penal Law § 240.20[5]), upon a knowing and voluntary guilty plea, defendant now seeks to challenge the court's prior rulings with respect to third-party subpoenas duces tecum issued in the course of the underlying criminal prosecution. Defendant's present contentions do not survive his guilty plea. "A guilty plea generally results in a forfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings" (People v Fernandez, 67 NY2d 686, 688 [1986]). The only exception potentially relevant to this case is set forth in CPL 710.70(2), which authorizes appellate review of an order finally denying a motion to suppress evidence despite a defendant's guilty plea. Upon analysis, that exception is inapplicable here for two reasons. First, defendant, through counsel, acknowledged on the record that his most recent (November 2012) preplea motion was properly "styled" not as one seeking suppression, but rather as a "motion in limine with respect to trial evidence." Given counsel's own stated characterization of the motion, and Criminal Court's treatment of the motion accordingly, any challenge to the court's evidentiary ruling was forfeited by defendant's guilty plea (see People v Hansen, 95 NY2d 227, 230-231 [2000]; People v Alvarado, 103 AD3d 1101, 1101 [2013], lv denied 21 NY3d 910 [2013]). Second, and of no less import, defendant pleaded guilty before the court issued a final order determining his motion, however styled (see People v Fernandez, 67 NY2d at 688; see generally People v Elmer, 19 NY3d 501, 507-508 [2012]). "That [defendant] may have believed his plea would not result in such forfeiture is irrelevant, because, even if communicated to the court, a subjective belief cannot permit evasion of what otherwise would be the consequences of the plea" (People v Fernandez, 67 NY2d at 688). [*2]

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 24, 2014