PEOPLE v. MCCRACKEN (2024)

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of murder in the second degree (Penal Law § 125.25 [1]). We previously held this case, reserved decision, and remitted the matter to Supreme Court to conduct a hearing to determine whether defendant was unlawfully arrested in his home in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (People v. McCracken, 217 A.D.3d 1543, 193 N.Y.S.3d 467 [4th Dept. 2023]). Upon remittal, the court determined following the Payton hearing that the police lawfully arrested defendant pursuant to a parole warrant. More specifically, the court determined that the warrant had been issued upon probable cause to believe that defendant had absconded from parole supervision and that the warrant was still active at the time of defendant's arrest. Although defendant has not submitted a new brief on resubmission, he has notified this Court that he is relying on the arguments he made in writing to the court following the hearing. We conclude that the evidence at the hearing amply supports the court's determination that defendant was lawfully arrested in his home pursuant to a valid parole warrant (see People v. Johnson, 140 A.D.3d 1630, 1631, 32 N.Y.S.3d 772 [4th Dept. 2016], lv denied 28 N.Y.3d 1028, 45 N.Y.S.3d 380, 68 N.E.3d 109 [2016]).

Defendant's remaining contention, raised in his initial brief, is that his plea was involuntarily entered. Because defendant did not move to withdraw his plea or to vacate the judgment of conviction, however, he failed to preserve his contention for our review (see People v. Williams, 198 A.D.3d 1308, 1309, 153 N.Y.S.3d 735 [4th Dept. 2021], lv denied 37 N.Y.3d 1149, 159 N.Y.S.3d 325, 180 N.E.3d 489 [2021]; People v. Boyd, 101 A.D.3d 1683, 1683, 956 N.Y.S.2d 382 [4th Dept. 2012]), and “this case does not fall within the rare exception to the preservation rule” (People v. Taylor, 196 A.D.3d 1050, 1051, 148 N.Y.S.3d 811 [4th Dept. 2021], lv denied 37 N.Y.3d 1099, 156 N.Y.S.3d 777, 178 N.E.3d 424 [2021] [internal quotation marks omitted]; see People v. Bellamy, 170 A.D.3d 1653, 1654, 94 N.Y.S.3d 905 [4th Dept. 2019]; see generally People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]).