People v. Rodriguez

Oct 12, 2006
Versions:33 A.D.3d 401
822 N.Y.S.2d 82

Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered February 25, 2005, convicting defendant, upon his plea of guilty, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 2 1/2 to 5 years, unanimously affirmed.

The record fails to support defendant’s assertion that the court should be deemed to have denied his motion for a Mapp hearing by failing to specifically grant it. On the contrary, the record supports the conclusion that the motion court in fact granted that request, and that the failure of its decision and order to reflect this was merely a clerical error regarding the nomenclature of the hearings granted. Furthermore, to the extent that the order required clarification with respect to precisely what hearings had been granted, it was incumbent upon defendant to call the problem to the court’s attention (cf. People v Davis, 248 AD2d 281 [1998], lv denied 91 NY2d 1006 [1998]). In any event, the record does not establish that the court issued an order finally denying defendant’s motion to suppress physical evidence, and defendant’s guilty plea thus waived the issue (CPL 710.70 [2]; People v Fernandez, 67 NY2d 686, 688 [1986]).

Concur—Buckley, P.J., Mazzarelli, Williams, Gonzalez and Sweeny, JJ.