People v. Battista

167 A.D.2d 344, 562 N.Y.S.2d 435, 1990 N.Y. App. Div. LEXIS 13386

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 5, 1990
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Westchester County (Marasco, J.), rendered September 3, 1986, convicting him of attempted criminal possession of a controlled substance in the first degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

Prior to the court’s acceptance of his plea of guilty, the defendant, through counsel, withdrew "all motions either pending or already decided” by the court. By so withdrawing all his pretrial motions, the defendant waived his right to seek review of the court’s suppression determination as well as its denial of his severance application upon appeal from the judgment of conviction. Therefore, the defendant is precluded from now raising these issues (see, People v Kafka, 128 AD2d 895; People v Feingold, 125 AD2d 587; People v Colarusso, 103 AD2d 848; see also, People v Williams, 36 NY2d 829, cert denied 423 US 873).

Our review of the plea allocution indicates that the defendant pleaded guilty voluntarily and that the plea satisfied the requirements of People v Harris (61 NY2d 9).

Inasmuch as the People have not taken a cross appeal, we decline to modify the sentence as suggested by the People (see, People v Pratt, 119 AD2d 839). Thompson, J. P., Brown, Balletta, Miller and O’Brien, JJ., concur.