THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. FRANK WISNIEWSKI DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. FRANK K. WISNIEWSKI, DEFENDANT–APPELLANT.

KA 16–02288

Decided: April 27, 2018

PRESENT:  WHALEN, P.J., CENTRA, LINDLEY, AND NEMOYER, JJ. NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (MARSHALL A. KELLY OF COUNSEL), FOR DEFENDANT–APPELLANT. DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING 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 guilty plea of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ) and criminal possession of a controlled substance in the third degree (§ 220.16[1] ).  Defendant's contention that County Court erred in failing to conduct an audibility hearing and to render a decision thereon does not survive his guilty plea (see People v. Gillett, 105 AD3d 1444, 1444 [4th Dept 2013] ).  By pleading guilty, defendant forfeited review of the merits of his contention regarding the audibility of certain evidence (see People v. Dunkins, 231 A.D.2d 587, 588 [2d Dept 1996], lv denied 89 N.Y.2d 863 [1996];  see also People v. Alvarado, 103 AD3d 1101, 1101 [4th Dept 2013], lv denied 21 NY3d 910 [2013] ).

Mark W. Bennett

Clerk of the Court