Opinion
1999-08065
Argued February 27, 2003.
March 17, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hanophy, J.), rendered August 17, 1999, convicting him of murder in the second degree (two counts), attempted murder in the second degree, reckless endangerment in the first degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Appelman, J.), of those branches of the defendant's omnibus motion which were to suppress identification evidence and his statement to law enforcement officials.
Andrew C. Fine, New York, N.Y. (Michael C. Taglieri of counsel), for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Mina Malik of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., ANITA R. FLORIO, WILLIAM D. FRIEDMANN, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the hearing court should have suppressed certain identification evidence and his statement as the fruits of an unlawful search is unpreserved for appellate review (see People v. Fenner, 61 N.Y.2d 971; People v. Warner, 125 A.D.2d 430). In any event, the defendant had abandoned the bag which was searched (see People v. Ramirez-Portoreal, 88 N.Y.2d 99, 110). Further, even if the search of the bag had been unlawful, suppression would not have been warranted as the lineup identifications of the defendant and his statement were sufficiently attenuated from any alleged illegality (see People v. Pleasant, 54 N.Y.2d 972, 974, cert denied 455 U.S. 924; People v. Barber, 268 A.D.2d 485), and the defendant's identity, which was obtained from a probation card found in the bag, would have been discovered in any event since he had already been identified by his nickname as one of the perpetrators (see People v. Turriago, 90 N.Y.2d 77, 86; People v. Barber, supra).
The defendant's accomplice fired several gunshots, killing two people and injuring another. The trial court was permitted to impose consecutive sentences for the defendant's convictions of murder in the second degree and attempted murder in the second degree, as those crimes were committed through separate acts, and the court providently exercised its discretion in doing so (see People v. Reyes, 239 A.D.2d 524). The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).
The contention raised in the defendant's supplemental pro se brief that he was denied the effective assistance of counsel is primarily based on matter dehors the record, which cannot be reviewed on direct appeal (see People v. Boyd, 244 A.D.2d 497). To the extent his contention can be reviewed, the record demonstrates that he received meaningful representation (see People v. Benevento, 91 N.Y.2d 708).
The defendant's remaining contention is without merit.
ALTMAN, J.P., FLORIO, FRIEDMANN and H. MILLER, JJ., concur.