PEOPLE v. MAYO III (2007)

 On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ), defendant contends that County Court erred in refusing to suppress statements, observations and tangible evidence obtained during a search of defendant's vehicle.   We reject that contention.   Defendant's vehicle was lawfully stopped based on a traffic violation and, “ [o]nce the Trooper observed what he believed to be marihuana, which was in plain view, the police had the right to conduct a thorough search of the vehicle for additional contraband and the fruits, instrumentalities, or evidence of the crime in question” (People v. Brown, 116 A.D.2d 727, 729, 497 N.Y.S.2d 934;  see People v. Clark, 172 A.D.2d 848, 569 N.Y.S.2d 211, lv. denied 78 N.Y.2d 964, 574 N.Y.S.2d 943, 580 N.E.2d 415;  see also People v. Bowers, 210 A.D.2d 795, 621 N.Y.S.2d 145;  see generally People v. Belton, 55 N.Y.2d 49, 54-55, 447 N.Y.S.2d 873, 432 N.E.2d 745, rearg. denied 56 N.Y.2d 646, 450 N.Y.S.2d 1026, 436 N.E.2d 196).

 Defendant further contends that he was denied his statutory and constitutional rights to a speedy trial.  “When defendant entered a plea of guilty he forfeited his right to claim that he was deprived of a speedy trial under CPL 30.30” (People v. O'Brien, 56 N.Y.2d 1009, 1010, 453 N.Y.S.2d 638, 439 N.E.2d 354;  see People v. Thill, 52 N.Y.2d 1020, 1021, 438 N.Y.S.2d 297, 420 N.E.2d 95, cert. denied 454 U.S. 829, 102 S.Ct. 122, 70 L.Ed.2d 105;  People v. Barnes, 41 A.D.3d 1309, 837 N.Y.S.2d 817;  People v. Tracey, 13 A.D.3d 1174, 787 N.Y.S.2d 542, lv. denied 4 N.Y.3d 836, 796 N.Y.S.2d 591, 829 N.E.2d 684) and, “[a]lthough the contention of defendant that he was denied his constitutional right to a speedy trial survives the guilty plea, defendant raises that contention for the first time on appeal and therefore failed to preserve it for our review” (People v. Robinson, 1 A.D.3d 1019, 1020, 767 N.Y.S.2d 363, lv. denied 2 N.Y.3d 745, 778 N.Y.S.2d 471, 810 N.E.2d 924;  see People v. Woodruff, 9 A.D.3d 896, 779 N.Y.S.2d 704, lv. denied 3 N.Y.3d 713, 785 N.Y.S.2d 41, 818 N.E.2d 683).

 Finally, defendant contends that the judgment should be reversed and the indictment dismissed based on the People's failure to preserve the alleged narcotics during the pendency of an earlier appeal that resulted in our reversal of the judgment of conviction on defendant's prior plea of guilty based on a defective waiver of indictment and superior court information (People v. Mayo, 21 A.D.3d 1316, 804 N.Y.S.2d 163).   Between the time of defendant's prior plea and our reversal of the judgment, the alleged narcotics were destroyed.   Although “the People have an obligation to preserve evidence ‘until all appeals have been exhausted’ ” (People v. Hernandez, 25 A.D.3d 566, 567, 808 N.Y.S.2d 411, lv. denied 6 N.Y.3d 848, 816 N.Y.S.2d 754, 849 N.E.2d 977;  see People v. Watkins, 189 A.D.2d 623, 624, 592 N.Y.S.2d 347, lv. denied 81 N.Y.2d 978, 598 N.Y.S.2d 779, 615 N.E.2d 236), defendant forfeited his right to raise that contention by subsequently entering the instant plea of guilty upon an indictment (see People v. Campbell, 73 N.Y.2d 481, 486, 541 N.Y.S.2d 756, 539 N.E.2d 584;  People v. Gerber, 182 A.D.2d 252, 265, 589 N.Y.S.2d 171, lv. denied 80 N.Y.2d 1026, 592 N.Y.S.2d 676, 607 N.E.2d 823;  see generally People v. Hansen, 95 N.Y.2d 227, 230-231, 715 N.Y.S.2d 369, 738 N.E.2d 773).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: