PEOPLE v. FARRELL (2007)

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered November 17, 2004, convicting defendant, upon his plea of guilty, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 2 1/212 to 5 years, unanimously affirmed.

The court did not finally deny defendant's motion to suppress physical evidence (see CPL 710.70[2];  People v. Rizzo, 5 A.D.3d 924, 925, 774 N.Y.S.2d 98 [2004], lv. denied 3 N.Y.3d 646, 782 N.Y.S.2d 418, 816 N.E.2d 208 [2004] ).   The record indicates that the court was prepared to receive and consider the supplementary affidavit that defendant offered to provide.   Therefore, defendant's ensuing guilty plea waived the suppression issue, and the exception in CPL 710.70(2) does not apply (see People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 [1986] ).   In any event, while defendant's motion papers may have been sufficient to allege standing to challenge a search and seizure, they were insufficient to raise a factual issue warranting a hearing.