Opinion
07-13-2017
The PEOPLE of the State of New York, Respondent, v. Ted COSTA, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Brittany N. Francis of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Oliver McDonald of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Brittany N. Francis of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Oliver McDonald of counsel), for respondent.
Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered April 16, 2014, as amended, June 11, 2014, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him to a term of five years, and judgment, same court and Justice, rendered February 4, 2015, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree, and sentencing him to a concurrent term of eight years, unanimously affirmed.
The court properly denied defendant's suppression motion regarding the third-degree possession charge. There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ; see also People v. Lewis, 136 A.D.3d 468, 24 N.Y.S.3d 504 [1st Dept. 2016], lv. denied 27 N.Y.3d 1001, 38 N.Y.S.3d 111, 59 N.E.3d 1223 [2016] ). Defendant's challenge to the officer's credibility cites matters that were not introduced at the suppression hearing and thus are not properly before us (see People v. Dukes, 284 A.D.2d 236, 726 N.Y.S.2d 554 [1st Dept.2001], lv. denied 97 N.Y.2d 681, 738 N.Y.S.2d 296, 764 N.E.2d 400 [2001] ).
The court properly denied defendant's motion challenging the search warrant regarding the second-degree possession charge. Based on our in camera review of the unredacted search warrant affidavit, we conclude that the supporting affidavit clearly established probable cause under the Aguilar–Spinelli test (see Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 [1969] ; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 [1964] ).
We perceive no basis for reducing the sentences.
SWEENY, J.P., MAZZARELLI, WEBBER, KAHN, KERN, JJ., concur.