THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JULIO NUNEZ DEFENDANT APPELLANT (2010)

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 criminal possession of a controlled substance in the first degree (Penal Law § 220.21[1] ).   We reject the contention of defendant that County Court erred in failing to address his requests to proceed pro se.  “Defendant never made an unequivocal invocation of his right of self-representation [ ] because each of his requests to proceed pro se was made in the context of a request for substitution of counsel” (People v. McClam, 297 A.D.2d 514, 514, lv denied 99 N.Y.2d 537;  see also People v. Caswell, 56 AD3d 1300, 1301-1302, lv denied 11 NY3d 923, 12 NY3d 781;  see generally People v. Gillian, 8 NY3d 85, 88).

We conclude that “[d]efendant forfeited the right to our review of [his further] contention[ ] ․ that the court should have suppressed evidence seized [from his residence] inasmuch as he pleaded guilty before the court determined whether suppression was warranted” (People v. Graham, 42 AD3d 933, 933-934, lv denied 9 NY3d 876).  “A guilty plea ‘generally results in a forfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings' “ (People v. Powless, 66 AD3d 1353, quoting People v. Fernandez, 67 N.Y.2d 686, 688).   Although a defendant convicted upon a plea of guilty may seek review of “[a]n order finally denying a motion

to suppress evidence” (CPL 710.70[2] ) upon an appeal from the judgment of conviction, no such order was issued in this case.

Patricia L. Morgan

Clerk of the Court