People v. Johnson

306 A.D.2d 939, 761 N.Y.S.2d 916, 2003 N.Y. App. Div. LEXIS 6769

Opinion

—Appeal from a judgment of Monroe County Court (Kohout, J.), entered July 16, 2001, convicting defendant upon his plea of guilty of, inter alia, burglary in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of burglary in the second degree (Penal Law § 140.25 [2]) and petit larceny (§ 155.25), defendant contends that the People failed to establish that the police officer who stopped and detained him had the requisite level of knowledge to support the stop and detention. Defendant argued before the suppression court only that he had been arrested without probable cause (see People v Brown, 275 AD2d 328 [2000], lv denied 95 NY2d 961 [2000]; Matter of Jason F., 243 AD2d 391 [1997]; People v Sanders, 224 AD2d 956 [1996], lv denied 88 NY2d 885 [1996]), and thus his present contention “was not raised at a time when the People had an evidentiary opportunity to counter [it]” (People v Rodriguez, 188 AD2d 564, 564 [1992], lv denied 81 NY2d 892 [1993]). Defendant’s contention therefore is unpreserved, for our review (see CPL 470.05 [2]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see 470.15 [6] [a]). Present — Pigott, Jr., P.J., Pine, Hurlbutt, Burns and Lawton, JJ.