Opinion
January 27, 2000
Judgment, Supreme Court, New York County (Franklin Weissberg, J., on pretrial motions; Harold Rothwax, J., at plea and sentence), rendered June 17, 1997, convicting defendant, upon his plea of guilty, of rape in the first degree, and sentencing him, as a second violent felony offender, to a term of 12+ years, unanimously affirmed.
Theresa A. Foudy, for Respondent.
Elizabeth J. Miller, for Defendant-Appellant.
ROSENBERGER, J.P., ELLERIN, WALLACH, LERNER, ANDRIAS, JJ.
Defendant's Mapp/Dunaway motion was properly denied without a hearing since his conclusory allegations were insufficient to controvert the specific factual averments as to the circumstances of the crime and his arrest that were included in the felony complaint, the indictment, the voluntary disclosure form and the People's response to his motion (People v. Mendoza, 82 N.Y.2d 415;People v. Rosario 245 A.D.2d 151, lv denied 91 N.Y.2d 896). Since he also failed to allege specifically that he was arrested unlawfully in his home without a warrant (see, Payton v. New York, 445 U.S. 573), his current contention in that regard has not been preserved for appellate review, and we decline to review it in the interest of justice. Were we to review such claim, we would find that his allegation that he was "constructively" arrested "at"; his home, without any assertion concerning lack of consent, was insufficient to warrant a hearing (see, People v. Marcos, 249 A.D.2d 105, lv denied 92 N.Y.2d 901).
We perceive no abuse of sentencing discretion.
Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.