PEOPLE v. COOPER (1999)

 County Court properly denied the motion to suppress items of physical evidence seized during a warrantless search of defendant's apartment conducted pursuant to the consent of defendant's girlfriend.   The People met their burden of establishing that the girlfriend had actual authority to permit the police to enter and search the apartment because she resided there with defendant (see, People v. Toro, 198 A.D.2d 532, 604 N.Y.S.2d 189;  People v. Rivas, 182 A.D.2d 722, 722-723, 582 N.Y.S.2d 727, lv. denied 81 N.Y.2d 793, 594 N.Y.S.2d 740, 610 N.E.2d 413).

 We reject the contention that defendant was denied effective assistance of counsel when his attorney took a position adverse to him on his pro se motions to withdraw the plea and for assignment of new counsel (cf., People v. Burton, 251 A.D.2d 1020, 674 N.Y.S.2d 560;  People v. Chrysler, 233 A.D.2d 928, 649 N.Y.S.2d 566).   The court decided the motions before counsel made the allegedly adverse statements.  “Thus, counsel's statements had no effect upon the court's decision and did not deprive defendant of effective assistance” (People v. Jones, 233 A.D.2d 944, 945, 649 N.Y.S.2d 578, lv. denied 89 N.Y.2d 943, 655 N.Y.S.2d 894, 678 N.E.2d 507;  see, People v. Zirpola, 237 A.D.2d 967, 655 N.Y.S.2d 213, lv. denied 90 N.Y.2d 899, 662 N.Y.S.2d 442, 685 N.E.2d 223).

 Defendant contends that his plea should be vacated on the ground that it was conditioned upon his ineffectual reservation of the right to appeal the denial of his motion to dismiss the indictment pursuant to CPL 30.30.   Defendant, however, failed to preserve that contention for our review by moving to withdraw the plea on that ground (see, People v. Lebrun, 234 A.D.2d 392, 393, 651 N.Y.S.2d 544, lv. denied 89 N.Y.2d 986, 656 N.Y.S.2d 745, 678 N.E.2d 1361;  People v. Hardy, 187 A.D.2d 810, 812, 589 N.Y.S.2d 966) or to vacate the judgment of conviction pursuant to CPL article 440 (see, People v. Di Donato, 87 N.Y.2d 992, 993, 642 N.Y.S.2d 616, 665 N.E.2d 186;  People v. Boyce, 150 A.D.2d 471, 540 N.Y.S.2d 746).   We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).

Finally, the sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: