Opinion
2014-08-6
The PEOPLE, etc., respondent, v. Bryant GIBBS, appellant.
Seymour W. James, Jr., New York, N.Y. (Michelle Fox and David Crow of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, and Claibourne Henry of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Michelle Fox and David Crow of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, and Claibourne Henry of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered January 5, 2012, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
There is no merit to the defendant's contention that he was deprived of a fair trial by the Supreme Court's grant of the People's request to hold an independent source hearing after jury selection. Although the defendant had a right to a determination of a pretrial motion prior to the commencement of trial ( seeCPL 710.40[3] ), he waived this right by consenting to the court's deviation from the statutory procedure ( see People v. Yousef, 236 A.D.2d 868, 869, 654 N.Y.S.2d 82; People v. Ramirez, 229 A.D.2d 452, 452, 645 N.Y.S.2d 81;People v. Orkabi, 160 A.D.2d 644, 645, 559 N.Y.S.2d 261).
Upon our independent review of the evidence pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
Contrary to the defendant's contention, the Supreme Court did not improperly sentence him based on the offenses of which his codefendant was convicted ( see People v. McGrath, 20 A.D.3d 574, 575, 800 N.Y.S.2d 27;see also People v. Forde, ––– A.D.3d ––––, ––– N.Y.S.2d ––––, 2014 WL 3843877 [decided herewith] ). Moreover, the sentence imposed was not improper merely because it exceeded a pretrial plea offer ( see People v. Johnson, 76 A.D.3d 1103, 1104–1105, 908 N.Y.S.2d 247), and the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675). HALL, J.P., ROMAN, DUFFY and LaSALLE, JJ., concur.