SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
616
KA 08-00858
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ERIC J. MCGINNIS, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered March 13, 2008. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree.
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 weapon in the
second degree (Penal Law § 265.03 [3]). Defendant contends that
County Court erred in refusing to suppress, inter alia, the weapon
seized by the police from his vehicle. “We note at the outset that,
although the court issued a bench decision with respect to [those
parts of] defendant’s omnibus motion [seeking to suppress the weapon
found in his vehicle and his statements to the police,] the exception
set forth in CPL 710.70 (2) allowing appellate review with respect to
orders that finally den[y] a motion to suppress evidence is not
applicable because defendant pleaded guilty before the court issued
such an order” (People v Ellis, 73 AD3d 1433, 1433-1434, lv denied 15
NY3d 851 [internal quotation marks omitted]; see People v Leary, 70
AD3d 1394, lv denied 14 NY3d 889). In any event, we conclude that
defendant’s contention is without merit. The record of the
suppression hearing establishes that the police officer who pulled
over defendant’s vehicle for a traffic infraction had a founded
suspicion that criminal activity was afoot, and thus he was justified
in asking for defendant’s consent to search the vehicle (see People v
Lowe, 79 AD3d 1676; see also People v Simmons, 79 AD3d 431; People v
Ward, 22 AD3d 368, lv denied 6 NY3d 782). At the time the police
officer asked defendant for his consent, he was aware of defendant’s
criminal background and had observed defendant leaving in the vehicle
from a known drug location at a high rate of speed. Further,
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KA 08-00858
defendant lied about the location from where he was driving. Contrary
to defendant’s further contention, the record also establishes that he
voluntarily consented to the search of the vehicle (see People v
Caldwell, 221 AD2d 972, lv denied 87 NY2d 920; see generally People v
Gonzalez, 39 NY2d 122, 128).
Entered: April 29, 2011 Patricia L. Morgan
Clerk of the Court