SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
April 26, 2013
THE PEOPLE OF THE STATE OF NEW YORK,
JODY B. GILLETT,
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered March 21, 2012.
People v Gillett
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Released on April 26, 2013
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, VALENTINO, AND MARTOCHE, JJ.
The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the third degree (Penal Law § 265.02 ). Defendant's contention that County Court erred in failing to conduct a hearing on his challenge to the voluntariness of his statements to the police does not survive his guilty plea. "A guilty plea generally results in a forfeiture of the right to appellate review of any non-jurisdictional defects in the proceedings" (People v Fernandez, 67 NY2d 686, 688), and the exception set forth in CPL 710.70 (2) does not apply here because defendant pleaded guilty before the court issued a decision on his suppression motion (see generally People v Elmer, 19 NY3d 501, 507-508). Defendant's challenge to the legal sufficiency of the evidence before the grand jury with respect to the third count of the indictment likewise does not survive the guilty plea (see People v Smith, 28 AD3d 1202, 1202, lv denied 7 NY3d 818; see generally People v Iannone, 45 NY2d 589, 600-601). Finally, defendant's contention that he was denied effective assistance of counsel "does not survive his guilty plea . . . because there was no showing that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance" (People v Dean, 48 AD3d 1244, 1245, lv denied 10 NY3d 839 [internal quotation marks omitted]). Entered: April 26, 2013 Frances E. Cafarell Clerk of the Court
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