THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JOHN BUTLER DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JOHN H. BUTLER, DEFENDANT–APPELLANT.

KA 15–00619

Decided: September 29, 2017

PRESENT:  SMITH, J.P., DEJOSEPH, CURRAN, TROUTMAN, AND WINSLOW, JJ. THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT–APPELLANT. JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN 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 fifth degree (Penal Law § 220.06).  Defendant contends that County Court erred in determining, following a Darden hearing, that there was probable cause supporting a search warrant in the case.  By pleading guilty before the court issued a suppression ruling with respect to the evidence seized pursuant to that search warrant, defendant waived his right to raise the issue of probable cause on appeal (see People v. Taylor, 43 AD3d 1400, 1400–1401, lv denied 9 NY3d 1039;  see generally People v. Elmer, 19 NY3d 501, 509;  People v. Fernandez, 67 N.Y.2d 686, 688).

Mark W. Bennett

Clerk of the Court