GILLETT, JODY B., PEOPLE v

Appellate Division of the Supreme Court of New York

GILLETT, JODY B., PEOPLE v

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 26, 2013

DocketKA 12-00723

StatusPublished

This text of GILLETT, JODY B., PEOPLE v (GILLETT, JODY B., PEOPLE v) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

GILLETT, JODY B., PEOPLE v, (N.Y. Ct. App. 2013).

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Opinion

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

418 KA 12-00723 PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, VALENTINO, AND MARTOCHE, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

JODY B. GILLETT, DEFENDANT-APPELLANT.

KELIANN M. ELNISKI, ORCHARD PARK, FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered March 21, 2012. 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 [1]). 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 nonjurisdictional 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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SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

418 KA 12-00723 PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, VALENTINO, AND MARTOCHE, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

JODY B. GILLETT, DEFENDANT-APPELLANT.

KELIANN M. ELNISKI, ORCHARD PARK, FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered March 21, 2012. 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 [1]). 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 nonjurisdictional 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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