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People v. Kelly

Supreme Court of New York, Second Department

June 7, 2017

The People of the State of New York, respondent,
v.
Lorenzo Kelly, appellant. Ind. No. 1561/13

          Robert DiDio, Kew Gardens, NY (Danielle Muscatello of counsel), for appellant.

          Madeline Singas, District Attorney, Mineola, NY (Yael V. Levy, Donald Berk, and John Latella of counsel), for respondent.

          CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, SYLVIA O. HINDS-RADIX, HECTOR D. LASALLE, JJ.

          DECISION & ORDER

         Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Grella, J.), rendered September 18, 2014, convicting him of aggravated driving while intoxicated, driving while intoxicated per se, driving while intoxicated, driving while ability impaired by the combined influence of drugs and alcohol, driving while ability impaired by drugs, aggravated vehicular assault (two counts), vehicular assault in the first degree (two counts), vehicular assault in the second degree (two counts), assault in the first degree (two counts), assault in the second degree (two counts), assault in the third degree, reckless endangerment in the first degree, reckless driving, leaving the scene of an incident without reporting (two counts), aggravated unlicensed operation of a motor vehicle in the first degree (two counts), and aggravated unlicensed operation of a motor vehicle in the second degree (two counts), upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, without a hearing, of those branches of the defendant's omnibus motion which were to suppress the results of a blood test and to controvert a search warrant.

         ORDERED that the judgment is affirmed.

         Contrary to the defendant's contention, the Supreme Court properly denied, without a hearing, that branch of his omnibus motion which was to suppress the results of a blood test, since the defendant failed to provide a sufficient legal basis for suppression (see CPL 710.60[3][a]; People v Garcia, 57 A.D.3d 918, 919). The court also properly denied, without a hearing, that branch of the defendant's omnibus motion which was to controvert a search warrant issued by the court, as the defendant failed to make the necessary substantial preliminary showing that the warrant was based upon an affidavit containing false statements made knowingly or intentionally, or with reckless disregard for the truth (see People v Moshier, 110 A.D.3d 832, 833; People v McGeachy, 74 A.D.3d 989, 990; People v Rhodes, 49 A.D.3d 668, 669; People v Tordella, 37 A.D.3d 500).

         The defendant's challenge to the factual sufficiency of his plea allocution is unpreserved for appellate review (see People v Toxey, 86 N.Y.2d 725, 726; People v Lopez, 71 N.Y.2d 662, 666; People v Rampersaud, 121 A.D.3d 721, 722; People v Davis, 114 A.D.3d 697, 698, affd 24 N.Y.3d 1012; People v Barrett, 105 A.D.3d 862, 863; People v Cubi, 104 A.D.3d 1225, 1226). Contrary to the defendant's contention, the exception to the preservation requirement does not apply in this case, because the defendant's allocution did not clearly cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (see People v Lopez, 71 N.Y.2d at 666; People v Rampersaud, 121 A.D.3d at 722; People v Davis, 114 A.D.3d at 698; People v Barrett, 105 A.D.3d at 863; People v Cubi, 104 A.D.3d at 1226). In any event, the plea allocution was sufficient inasmuch as it showed that the defendant understood the charges and made an intelligent decision to accept the plea (see People v Goldstein, 12 N.Y.3d 295, 301; People v Rampersaud, 121 A.D.3d at 722; People v Davis, 114 A.D.3d at 698; People v Barrett, 105 A.D.3d at 863; People v Cubi, 104 A.D.3d at 1226).

         By pleading guilty, the defendant forfeited his contention regarding the sufficiency of the evidence before the grand jury (see People v Woods,115 A.D.3d 997, 998; People v Devodier,102 A.D.3d 884, 885; People v ...


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