Opinion
2011-12-23
The PEOPLE of the State of New York, Respondent, v. Charles WILLIAMS, also known as Cash, Defendant–Appellant.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered November 18, 2010. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree (two counts).Charles A. Marangola, Moravia, for defendant-appellant. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for respondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered November 18, 2010. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree (two counts).Charles A. Marangola, Moravia, for defendant-appellant. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for respondent.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of two counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ), defendant contends that the indictment should be dismissed because he appeared before the grand jury in shackles and handcuffs. Although that contention survives the guilty plea ( see People v. Crumpler, 70 A.D.3d 1396, 894 N.Y.S.2d 303, lv. denied 14 N.Y.3d 839, 901 N.Y.S.2d 146, 927 N.E.2d 567; People v. Gilmore, 12 A.D.3d 1155, 1155–1156, 785 N.Y.S.2d 231), it “is not preserved for our review because defendant did not object to appearing before the grand jury in that manner or request cautionary instructions with respect to that appearance” ( People v. Abron, 37 A.D.3d 1163, 829 N.Y.S.2d 385, lv. denied 8 N.Y.3d 980, 838 N.Y.S.2d 484, 869 N.E.2d 660; see People v. Robinson, 49 A.D.3d 1269, 1270, 852 N.Y.S.2d 893, lv. denied 10 N.Y.3d 869, 860 N.Y.S.2d 495, 890 N.E.2d 258; see generally People v. Johnston, 43 A.D.3d 1273, 1274, 842 N.Y.S.2d 837, lv. denied 9 N.Y.3d 1007, 850 N.Y.S.2d 395, 880 N.E.2d 881). Further, defendant abandoned that contention by pleading guilty before County Court decided that part of his motion seeking to dismiss the indictment on the ground that he appeared before the grand jury in shackles and handcuffs ( see People v. Barker [Appeal No. 1], 254 A.D.2d 730, 678 N.Y.S.2d 562, lv. denied 93 N.Y.2d 870, 689 N.Y.S.2d 432, 711 N.E.2d 646; see generally People v. Fortin, 289 A.D.2d 590, 591, 735 N.Y.S.2d 819, lv. denied 97 N.Y.2d 754, 742 N.Y.S.2d 614, 769 N.E.2d 360). By pleading guilty, defendant forfeited his further contention that he was denied his right to testify before the grand jury based on the prosecutor's refusal to provide him with notice of all charges the grand jury would consider ( see People v. Gray, 62 A.D.3d 1256, 879 N.Y.S.2d 265; People v. Hoeft, 42 A.D.3d 968, 969, 838 N.Y.S.2d 842, lv. denied 9 N.Y.3d 962, 848 N.Y.S.2d 30, 878 N.E.2d 614; People v. Winchester, 38 A.D.3d 1336, 1337, 831 N.Y.S.2d 798, lv. denied 9 N.Y.3d 853, 840 N.Y.S.2d 779, 872 N.E.2d 892). In any event, that contention is without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.