DUDDEN, MARK, PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
337
KA 12-02268
PRESENT: SMITH, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
MARK DUDDEN, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MARK DUDDEN, DEFENDANT-APPELLANT PRO SE.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered November 1, 2012. The judgment convicted
defendant, upon his plea of guilty, of criminal sale of a controlled
substance 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 sale of a controlled substance in
the second degree (Penal Law § 220.41 [1]). Although we agree with
defendant that the waiver of the right to appeal is invalid because
“ ‘the minimal inquiry made by County Court was insufficient to
establish that the court engage[d] the defendant in an adequate
colloquy to ensure that the waiver of the right to appeal was a
knowing and voluntary choice’ ” (People v Jones, 107 AD3d 1589, 1589-
1590, lv denied 21 NY3d 1075; see People v Amir W., 107 AD3d 1639,
1640), we nevertheless affirm the judgment.
Defendant contends that his plea should be vacated because he was
coerced into pleading guilty by the court’s decision to change the
date of his trial. Defendant failed to preserve that contention for
our review (see People v Boyd, 101 AD3d 1683, 1683; People v Lando, 61
AD3d 1389, 1389, lv denied 13 NY3d 746), and this case does not fall
within the narrow exception to the preservation requirement (see
People v Carlisle, 50 AD3d 1451, 1451, lv denied 10 NY3d 957; People v
Gray, 21 AD3d 1398, 1399; cf. People v Lang, 127 AD3d 1253, 1255; see
generally People v Lopez, 71 NY2d 662, 666). Contrary to defendant’s
further contention, the court properly refused to suppress
identification evidence upon determining that the undercover officer’s
-2- 337
KA 12-02268
identification of defendant was merely confirmatory (see generally
People v Wharton, 74 NY2d 921, 922-923). We also reject defendant’s
challenge to the severity of the sentence.
In his pro se supplemental brief, defendant contends that the
court erred in denying his request for a Darden hearing. We reject
that contention. Where, as here, information is received from a
confidential informant but the police officer thereafter makes his or
her own observations of criminal activity without further employment
of the informant, those observations form the basis for probable cause
to arrest, rendering a Darden hearing unnecessary (see People v
Darden, 34 NY2d 177, 180-181, rearg denied 34 NY2d 995; People v Long,
100 AD3d 1343, 1345-1346, lv denied 20 NY3d 1063).
Defendant further contends in his pro se supplemental brief that
the court erred in refusing to dismiss or reduce the indictment
because the People were improperly permitted to amend the indictment.
“[B]y his guilty plea, defendant forfeited any challenge to the
alleged amendment of the indictment” (People v Torres, 117 AD3d 1497,
1498, lv denied 24 NY3d 965). Finally, we conclude that defendant’s
remaining contention in his pro se supplemental brief lacks merit.
Entered: April 29, 2016 Frances E. Cafarell
Clerk of the Court