People v. Garcia-Santo

24 A.D.3d 467, 805 N.Y.S.2d 653

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 5, 2005
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Westchester County (Dickerson, J.), rendered February 4, 2003, convicting him of criminal possession of a controlled substance in the second degree and criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant argues, inter alia, that the County Court erred in summarily denying his motion to suppress physical evidence because the police stopped his car based only upon an anonymous tip. However, as the People correctly respond, review of this issue is precluded by the defendant’s effective waiver of appellate review (see People v Harris, 21 AD3d 907 [2005]; People v Gully, 17 AD3d 382 [2005], Iv denied 5 NY3d 763 [2005]).

Insofar as the defendant contends that he received ineffective assistance of counsel which rendered his plea involuntary, review of this issue is not precluded by his appellate waiver (see People v Judy, 21 AD3d 969 [2005]; People v Escobedo, 7 AD3d 539 [2004]). However, the defendant never moved to withdraw his guilty plea, so his challenge to the voluntariness thereof based upon the alleged incompetence of his attorneys is unpreserved for appellate review (id.; People v Thompson, 4 AD3d 785 [2004]; People v Vatore, 303 AD2d 607 [2003]; People v Fulford, 296 AD2d 661 [2002]). In any event, the record does not support the defendant’s ineffective assistance claims.

The defendant’s remaining contentions are without merit. Prudenti, EJ., S. Miller, Spolzino and Dillon, JJ., concur.