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

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Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JULIO R. NUNEZ, DEFENDANT-APPELLANT.

KA 07-01128

Decided: May 07, 2010

PRESENT:  SMITH, J.P., CARNI, SCONIERS, AND PINE, JJ. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT. MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY A. GILLIGAN OF COUNSEL), FOR RESPONDENT.

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