Opinion
December 23, 1985
Appeal from the Supreme Court, Westchester County (Colabella, J.).
Judgment affirmed.
On this appeal, defendant contends, inter alia, that the Supreme Court erroneously denied that branch of his motion which sought suppression of certain evidence seized pursuant to a search warrant. Defendant also seeks suppression of statements allegedly made to law enforcement officers.
The above matters relating to suppression of evidence allege nonjurisdictional defects which generally would be waived by a plea of guilty (see, People v Thomas, 74 A.D.2d 317, 321, affd 53 N.Y.2d 338; People v Zangrillo, 105 A.D.2d 822). However, CPL 710.70 (2) creates a statutory exception to the general rule in cases where "[a]n order finally denying a motion to suppress evidence" has been made. Thus, defendant is entitled to review of the denial of that branch of his motion which was to suppress tangible evidence notwithstanding his guilty plea unless defendant expressly waived such right to appeal (see, People v Williams, 36 N.Y.2d 829, cert. denied 423 U.S. 873; People v Pescatore, 102 A.D.2d 834). Upon the record before us, it does not appear that defendant made an express waiver of his right to appeal. Nevertheless, upon consideration of this issue, we find that the Supreme Court properly denied suppression. Sufficient evidence was presented to the Judge who issued the search warrant pursuant to which the evidence sought to be suppressed was seized for a determination that probable cause existed for its issuance (see, CPL 690.40). With respect to that branch of defendant's motion which sought to determine the admissibility of statements allegedly made to law enforcement officers, defendant waived his right to appellate review by pleading guilty prior to judicial resolution of the issue (see, People v Querica, 106 A.D.2d 589; People v Pescatore, supra; People v Corti, 88 A.D.2d 345).
Defendant's challenge to his plea has not been preserved by motion to withdraw the plea (CPL 220.60) or motion to vacate the judgment (CPL 440.10; see, e.g., People v Hoke, 62 N.Y.2d 1022; People v Pellegrino, 60 N.Y.2d 636), and nothing in this record persuades us that vacatur is warranted in the interest of justice.
We have reviewed defendant's remaining contentions and find them to be without merit. Gibbons, J.P., Brown, Weinstein and Lawrence, JJ., concur.