PEOPLE v. SMITH

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Robert SMITH, appellant.

Decided: November 21, 2012

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ. Carol Kahn, New York, N.Y., for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Dutchess County (Forman, J.), rendered August 4, 2011, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and sentencing him to a determinate term of imprisonment of two years, plus a period of two years of postrelease supervision, and a forfeiture of the United States currency and cellular telephone seized at the time of his arrest.

ORDERED that the judgment is modified, on the law, by vacating that portion of the sentence which imposed the forfeiture of the cellular telephone seized at the time of the defendant's arrest; as so modified, the judgment is affirmed.

The defendant contends that the County Court erred in failing to dismiss the indictment in the interest of justice (see CPL 210.40[1]; People v. Clayton, 41 A.D.2d 204). However, by pleading guilty, the defendant forfeited his right to raise that issue on appeal (see People v. Travis, 205 A.D.2d 648, 648; People v. Merlo, 195 A.D.2d 576, 576; People v. Mitchell, 189 A.D.2d 900, 900; People v. Purcell, 161 A.D.2d 812, 813; People v. Macy, 100 A.D.2d 557, 557).

Under the particular circumstances of this case, we deem it appropriate to vacate that portion of the defendant's sentence which imposed the forfeiture of the cellular telephone seized at the time of his arrest.

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