PEOPLE v. DIALLO (2023)

Judgment, Supreme Court, New York County (Neil E. Ross, J.), rendered December 14, 2015, convicting defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of one year, unanimously affirmed.

Defendant made a valid waiver of his right to appeal, which forecloses review of his suppression claim.  Any ambiguity in the oral colloquy was resolved by the written waiver, which defendant reviewed with counsel (see e.g. People v. Ross, 212 A.D.3d 473, 473, 179 N.Y.S.3d 581 [1st Dept. 2023]).

Regardless of whether defendant made a valid appeal waiver, his specific challenges to the search warrant were not preserved by his general motion to controvert (see People v. Williams, 127 A.D.3d 612, 8 N.Y.S.3d 133 [1st Dept. 2015], lv denied 27 N.Y.3d 1009, 38 N.Y.S.3d 118, 59 N.E.3d 1230 [2016]), and we decline to review them in the interest of justice.  Defendant purported to reserve the right to make specific arguments upon receipt of the warrant and supporting documents, but he instead pleaded guilty without making any further motion.  As an alternative holding, we find that the warrant was properly issued in all respects (see CPL 690.35[4][b];  690.40[2];  People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985]).  Although “defendant complains that some of the People's arguments are raised for the first time on appeal ․, this is a consequence of the procedural posture of the case, in which defendant did not litigate the present issue” (People v. Calderon, 92 A.D.3d 606, 607, 938 N.Y.S.2d 561 [1st Dept. 2012], lv denied 19 N.Y.3d 958, 950 N.Y.S.2d 110, 973 N.E.2d 208 [2012]).