Disposition: Applications for Criminal Leave to appeal denied Decision Reported Below: 4th Dept: 192 A.D.3d 1649 (Onondaga)
However, in its written decision, the court found that the investigators who interviewed defendant at the PSB had asked pedigree questions prior to issuing the Miranda warnings and then concluded as a matter of law that defendant's answers to the pedigree questions were admissible as an exception to the Miranda requirement. Therefore, the court expressly decided the first issue raised on appeal, thereby preserving it for our review (see CPL 470.05 [2] ; People v. Prado , 4 N.Y.3d 725, 726, 790 N.Y.S.2d 418, 823 N.E.2d 824 [2004], rearg denied 4 N.Y.3d 795, 795 N.Y.S.2d 170, 828 N.E.2d 86 [2005] ; People v. Johnson , 192 A.D.3d 1612, 1613, 143 N.Y.S.3d 763 [4th Dept. 2021] ; People v. Curry , 192 A.D.3d 1649, 1650, 145 N.Y.S.3d 259 [4th Dept. 2021], lv denied 37 N.Y.3d 955, 147 N.Y.S.3d 538, 170 N.E.3d 412 [2021] ). We agree with defendant that the court erred in concluding that the disputed pre-Miranda questions fell within the pedigree exception to the Miranda requirement.
The Supreme Court found that Officer Sepulveda's testimony regarding the vehicle stop was credible, and that the vehicle was "justifiably stopped." Thus, not only did the defendant specifically argue that Officer Sepulveda had no basis to stop the vehicle, but the court also expressly decided the issue of whether Officer Sepulveda gave sufficiently credible testimony regarding the grounds for the vehicle stop (see CPL 470.05[2] ; People v. Jones, 202 A.D.3d 821, 162 N.Y.S.3d 145 ; People v. Curry, 192 A.D.3d 1649, 1650, 145 N.Y.S.3d 259 ; People v. Miles, 58 A.D.3d 872, 873 N.Y.S.2d 125 ). My colleagues in the majority agree that the defendant's challenge to the lawfulness of the traffic stop and the credibility of Officer Sepulveda's testimony are preserved for appellate review, but assert that some specific arguments advanced on appeal are unpreserved.
The Supreme Court found that Officer Sepulveda's testimony regarding the vehicle stop was credible, and that the vehicle was "justifiably stopped." Thus, not only did the defendant specifically argue that Officer Sepulveda had no basis to stop the vehicle, but the court also expressly decided the issue of whether Officer Sepulveda gave sufficiently credible testimony regarding the grounds for the vehicle stop (see CPL 470.05[2]; People v Jones, 202 A.D.3d 821; People v Curry, 192 A.D.3d 1649, 1650; People v Miles, 58 A.D.3d 872).
.D.2d 127, 127 [1st Dept 1999], lv denied 93 N.Y.2d 1004 [1999]; People v Matthews, 249 A.D.2d 963, 963 [4th Dept 1998]), we conclude that the court did not abuse its discretion in denying defense counsel's request to adjourn the rescheduled trial on the drug charges (see People v Resto, 147 A.D.3d 1331, 1332 [4th Dept 2017], lv denied 29 N.Y.3d 1000 [2017], reconsideration denied 29 N.Y.3d 1094 [2017]; People v Garcia, 101 A.D.3d 1604, 1605 [4th Dept 2012], lv denied 20 N.Y.3d 1098 [2013]; see generally People v Spears, 64 N.Y.2d 698, 699-700 [1984]). Finally, inasmuch as the certificate of conviction and uniform sentence and commitment form incorrectly reflect that defendant was sentenced as a second felony offender, they must be amended to reflect that he was actually sentenced as a second felony drug offender previously convicted of a violent felony offense (see People v Curry, 192 A.D.3d 1649, 1652 [4th Dept 2021], lv denied 37 N.Y.3d 955 [2021]; People v Martinez, 166 A.D.3d 1558, 1560 [4th Dept 2018]).
[1999] ; People v. Matthews , 249 A.D.2d 963, 963, 673 N.Y.S.2d 280 [4th Dept. 1998] ), we conclude that the court did not abuse its discretion in denying defense counsel's request to adjourn the rescheduled trial on the drug charges (seePeople v. Resto , 147 A.D.3d 1331, 1332, 47 N.Y.S.3d 522 [4th Dept. 2017], lv denied 29 N.Y.3d 1000, 80 N.E.3d 415 [2017], reconsideration denied 29 N.Y.3d 1094, 63 N.Y.S.3d 10, 85 N.E.3d 105 [2017] ; People v. Garcia , 101 A.D.3d 1604, 1605, 959 N.Y.S.2d 571 [4th Dept. 2012], lv denied 20 N.Y.3d 1098, 965 N.Y.S.2d 794, 988 N.E.2d 532 [2013] ; see generallyPeople v. Spears , 64 N.Y.2d 698, 699-700, 485 N.Y.S.2d 521, 474 N.E.2d 1189 [1984] ). Finally, inasmuch as the certificate of conviction and uniform sentence and commitment form incorrectly reflect that defendant was sentenced as a second felony offender, they must be amended to reflect that he was actually sentenced as a second felony drug offender previously convicted of a violent felony offense (seePeople v. Curry , 192 A.D.3d 1649, 1652, 145 N.Y.S.3d 259 [4th Dept. 2021], lv denied 37 N.Y.3d 955, 147 N.Y.S.3d 538, 170 N.E.3d 412 [2021] ; People v. Martinez , 166 A.D.3d 1558, 1560, 88 N.Y.S.3d 732 [4th Dept. 2018] ).
Here, defendant specifically raised the issue of unlawful detention in a posthearing submission (cf. id. ), which is a time when the court still had an opportunity of changing its ruling. Moreover, the court expressly decided that issue in its decision and order (seePeople v. Curry , 192 A.D.3d 1649, 1650, 145 N.Y.S.3d 259 [4th Dept. 2021], lv denied 37 N.Y.3d 955, 147 N.Y.S.3d 538, 170 N.E.3d 412 [2021] ). With respect to the merits, the officer testified at the Huntley hearing that she "asked [defendant] to step into [her] vehicle" to be transported to the station to be interviewed.
Here, defendant specifically raised the issue of unlawful detention in a posthearing submission (cf. id.), which is a time when the court still had an opportunity of changing its ruling. Moreover, the court expressly decided that issue in its decision and order (see People v Curry, 192 A.D.3d 1649, 1650 [4th Dept 2021], lv denied 37 N.Y.3d 955 [2021]). With respect to the merits, the officer testified at the Huntley hearing that she "asked [defendant] to step into [her] vehicle" to be transported to the station to be interviewed.
.D.2d 127, 127 [1st Dept 1999], lv denied 93 N.Y.2d 1004 [1999]; People v Matthews, 249 A.D.2d 963, 963 [4th Dept 1998]), we conclude that the court did not abuse its discretion in denying defense counsel's request to adjourn the rescheduled trial on the drug charges (see People v Resto, 147 A.D.3d 1331, 1332 [4th Dept 2017], lv denied 29 N.Y.3d 1000 [2017], reconsideration denied 29 N.Y.3d 1094 [2017]; People v Garcia, 101 A.D.3d 1604, 1605 [4th Dept 2012], lv denied 20 N.Y.3d 1098 [2013]; see generally People v Spears, 64 N.Y.2d 698, 699-700 [1984]). Finally, inasmuch as the certificate of conviction and uniform sentence and commitment form incorrectly reflect that defendant was sentenced as a second felony offender, they must be amended to reflect that he was actually sentenced as a second felony drug offender previously convicted of a violent felony offense (see People v Curry, 192 A.D.3d 1649, 1652 [4th Dept 2021], lv denied 37 N.Y.3d 955 [2021]; People v Martinez, 166 A.D.3d 1558, 1560 [4th Dept 2018]).
Here, defendant specifically raised the issue of unlawful detention in a posthearing submission (cf. id.), which is a time when the court still had an opportunity of changing its ruling. Moreover, the court expressly decided that issue in its decision and order (see People v Curry, 192 A.D.3d 1649, 1650 [4th Dept 2021], lv denied 37 N.Y.3d 955 [2021]). With respect to the merits, the officer testified at the Huntley hearing that she "asked [defendant] to step into [her] vehicle" to be transported to the station to be interviewed.