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The People of the State of New York v. Carmine Morton

State of New York Supreme Court, Appellate Division Third Judicial Department


May 12, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
CARMINE MORTON, APPELLANT.

Appeal from a judgment of the County Court of Schenectady County (Drago, J.), rendered June 24, 2008, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.

The opinion of the court was delivered by: Garry, J.

MEMORANDUM AND ORDER

Calendar Date: March 25, 2011

Before: Mercure, J.P., Lahtinen, Malone Jr., Kavanagh and Garry, JJ.

Upon being advised that two men were brandishing guns in a parking lot, the police department dispatched patrol officers to the scene. The officers ultimately discovered two handguns in a van in which defendant was a passenger. In a six-count indictment, he was charged with various degrees of criminal possession of a weapon. On defendant's motion, a suppression hearing was conducted before a Judicial Hearing Officer, who set forth his findings and recommended denial. Prior to County Court's determination, defendant pleaded guilty to one count of criminal possession of a weapon in the second degree and, as part of the plea, waived his right to appeal. He was sentenced as a second felony offender to a prison term of five years, followed by five years of postrelease supervision. Defendant appeals, raising issues relative to the suppression motion.

The issues raised on this appeal are foreclosed upon two separate grounds. First, the Judicial Hearing Officer is vested with limited powers (see CPL 255.20 [4]; see generally People v Scalza, 76 NY2d 604 [1990]), and defendant pleaded guilty while the motion was still pending, thus waiving the right to appellate review (see People v Lewis, 39 AD3d 1025, 1026 [2007]). Further, there is no challenge to the validity of his waiver of appeal, which was executed in writing and accompanied by an appropriate discussion with County Court; this also forecloses the issues that defendant raises (see People v Kemp, 94 NY2d 831, 833 [1999]; People v White, 75 AD3d 837, 838 [2010], lv denied 15 NY3d 925 [2010]; People v Schmidt, 57 AD3d 1104, 1104 [2008]).

Mercure, J.P., Lahtinen, Malone Jr. and Kavanagh, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20110512

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