| People v Hutter |
| 2016 NY Slip Op 06881 |
| Decided on October 20, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on October 20, 2016
Sweeny, J.P., Renwick, Manzanet-Daniels, Gische, Webber, JJ.
923/11 1984A 1984
v
Craig Hutter, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Ryan of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Natalia Bedoya McGinn of counsel), for respondent.
Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered February 8, 2012, convicting defendant, upon his plea of guilty, of attempted assault in the first degree, assault in the second degree and criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to an aggregate term of 7 years, unanimously affirmed. Order, same court (Ruth Pickholz, J.), entered on or about December 15, 2014, which denied defendant's CPL 440.10 motion to vacate the judgment of conviction, unanimously affirmed.
The record supports the suppression court's determination that, notwithstanding a suppressed lineup, the victim had an independent source for his identification of defendant (see Neil v Biggers, 409 US 188, 199-200 [1972]; People v Williams, 222 AD2d 149, 153 [1st Dept 1996], lv denied 88 NY2d 1072 [1996]). The victim had an ample opportunity to observe defendant under good lighting conditions, and he provided a detailed and accurate description. Moreover, he selected defendant from a fair photo array, as well as from a fair lineup that was suppressed solely on right to counsel grounds.
The record establishes that defendant's plea was knowing, intelligent and voluntary. Defendant asserts that the voluntariness of his plea was impaired by the court's allegedly erroneous preliminary ruling on the admissibility of certain evidence. However, defendant's evidentiary argument was forfeited by his guilty plea, and he "should not be permitted to circumvent that rule by asserting on appeal that a ruling impacted' the decision to plead guilty or left no choice' but to do so" (People v Smith, 130 AD3d 411, 411 [1st Dept 2015], lv denied 26 NY3d 1043 [2015]). In any event, the court did not make a final ruling, and defendant has not shown that the evidence at issue, which tended to support an inference of witness-tampering by proxy (see e.g. People v Jones, 21 NY3d 449, 456 [2013]), was inadmissible to begin with. Furthermore,
defendant received sufficient time to investigate this issue and decide whether to accept the plea, and no further time was requested.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 20, 2016
CLERK