People v. Roache — 105 A.D.2d 811

Majority

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The People of the State of New York, Respondent, v Walter Roache, Appellant.

Appeal by defendant from a judgment of the County Court, Orange County (Isseks, J.),

p. 812

rendered July 31,1979, convicting him of rape in the first degree (two counts) and rape in the third degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of the defendant’s motion to suppress physical evidence.

Judgment affirmed.

At no time did the defendant raise before the suppression court the issue that the physical evidence should have been suppressed because his arrest was effected in his home without a warrant and in the absence of exigent circumstances (see Payton v New York, 445 US 573 ). By not pursuing that particular issue, the defendant has failed to preserve it for appellate review (People v Smith, 55 NY2d 888 ; People v Gonzalez, 55 NY2d 887 ; People v Nieves, 102 AD2d 858 ; People v Jennings, 94 AD2d 802 ; see People v Kaminski, 58 NY2d 886 ; cf. People v Gordon, 98 AD2d 781 ; People v Maerling, 89 AD2d 1001 ). Moreover, under the circumstances presented, review of this issue is not warranted as a matter of discretion in the interest of justice.

The record of the defendant’s CPL 440 motion is not properly before us at this juncture (cf. People v Mishkin, 20 NY2d 716 ; People v Gates, 36 AD2d 761 ).

We have considered the defendant’s remaining contentions and find them to be without merit. Mangano, J. P., Gibbohs, O’Connor and Brown, JJ., concur.

Cases cited

Payton v. New York 445 US 573 SCOTUS 1980-04-15 p. 812
People v. Smith 55 NY2d 888 N.Y. 1982-02-09 p. 812
People v. Gonzalez 55 NY2d 887 N.Y. 1982-02-09 p. 812
People v. Kaminski 58 NY2d 886 N.Y. 1983-02-15 p. 812
People v. Gordon 98 AD2d 781 N.Y. App. Div. 1983-12-19 p. 812
People v. Mishkin 20 NY2d 716 N.Y. 1967-07-07 p. 812