People v Butler
2017 NY Slip Op 06753 [153 AD3d 1588]
September 29, 2017
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, November 1, 2017


[*1]
 The People of the State of New York, Respondent, v John H. Butler, Appellant.

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.

Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered February 23, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth 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 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 [2007], lv denied 9 NY3d 1039 [2008]; see generally People v Elmer, 19 NY3d 501, 509 [2012]; People v Fernandez, 67 NY2d 686, 688 [1986]). Present—Smith, J.P., DeJoseph, Curran, Troutman and Winslow, JJ.