People v. Wisniewski

2018 NY Slip Op 3030

Opinion

People v Wisniewski (2018 NY Slip Op 03030)

People v Wisniewski

2018 NY Slip Op 03030

Decided on April 27, 2018

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 27, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, AND NEMOYER, JJ.

548 KA 16-02288

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

FRANK K. WISNIEWSKI, DEFENDANT-APPELLANT.

NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (MARSHALL A. KELLY OF COUNSEL), FOR DEFENDANT-APPELLANT.

DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Wyoming County Court (Michael M. Mohun, J.), rendered December 17, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance 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 guilty plea of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) and criminal possession of a controlled substance in the third degree (§ 220.16 [1]). Defendant's contention that County Court erred in failing to conduct an audibility hearing and to render a decision thereon does not survive his guilty plea (see People v Gillett, 105 AD3d 1444, 1444 [4th Dept 2013]). By pleading guilty, defendant forfeited review of the merits of his contention regarding the audibility of certain evidence (see People v Dunkins, 231 AD2d 587, 588 [2d Dept 1996], lv denied 89 NY2d 863 [1996]; see also People v Alvarado, 103 AD3d 1101, 1101 [4th Dept 2013], lv denied 21 NY3d 910 [2013]).

Entered: April 27, 2018

Mark W. Bennett

Clerk of the Court