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People v. Freeman

Appellate Division of the Supreme Court of New York, First Department
Dec 16, 2003
2 A.D.3d 242 (N.Y. App. Div. 2003)

Opinion

2500.

Decided December 16, 2003.

Judgment, Supreme Court, Bronx County (Edward Davidowitz, J. on motion; Norma Ruiz, J. at jury trial and sentence), rendered October 2, 2000, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously affirmed.

Nisha M. Desai, for Respondent.

Kenneth M. Tuccillo, for Defendant-Appellant.

Before: Buckley, P.J., Nardelli, Tom, Mazzarelli, Sullivan, JJ.


The verdict was not against the weight of the evidence. Issues of credibility and identification, including the weight to be given to inconsistencies in testimony, were properly considered by the jury and there is no basis for disturbing its determinations ( see People v. Gaimari, 176 N.Y. 84, 94).

The motion court properly denied the pretrial suppression motion made by defense counsel. That motion simply made an unavailing challenge to the undercover officer's identification of defendant as unduly suggestive ( see People v. Wharton, 74 N.Y.2d 921), and did not state any Fourth Amendment claim, including any claim under Payton v. New York ( 445 U.S. 573). Thus, the court did not address any issue as to the legality of defendant's arrest since none was raised by the motion. While defendant did make a pro se motion advancing a Fourth Amendment claim, he abandoned that motion ( see People v. Graves, 85 N.Y.2d 1024, 1027). In any event, defendant's allegations were insufficient, in light of his access to relevant information, to raise a factual issue warranting a hearing ( see People v. Jones, 95 N.Y.2d 721, 728-729).

Defendant's contentions concerning an alleged identification by the arresting officer in this buy-and-bust case are without merit. The record clearly establishes that the arresting officer never "previously identified" defendant within the meaning of CPL 710.30(1)(b).

The trial court properly exercised its discretion in denying defendant's request for a suppression hearing, made on the basis of trial testimony ( see CPL 710.40,[4]). There was nothing to prevent defendant from making a proper pretrial motion. In any event, the trial evidence did not reveal any viable Fourth Amendment issue.

The court properly exercised its discretion in denying defendant's mistrial motion based on portions of the prosecutor's summation. While the challenged remarks were better left unsaid, these isolated portions of the summation were not so egregious as to deprive defendant of a fair trial ( see People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

People v. Freeman

Appellate Division of the Supreme Court of New York, First Department
Dec 16, 2003
2 A.D.3d 242 (N.Y. App. Div. 2003)
Case details for

People v. Freeman

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FREDERICK FREEMAN…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 16, 2003

Citations

2 A.D.3d 242 (N.Y. App. Div. 2003)
769 N.Y.S.2d 529

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