Opinion
April 13, 1998
Appeal from the Supreme Court, Kings County (Greenberg, J.).
Ordered that the judgment is affirmed.
On appeal, the defendant challenges the trial court's suppression ruling upon the ground that the trial testimony of a prosecution witness contradicted the hearing testimony of that witness. It is well settled that trial testimony may not be considered in evaluating a suppression ruling on appeal ( see, People v. Riley, 70 N.Y.2d 523, 532; People v. Gonzalez, 55 N.Y.2d 720, 721-722, cert denied 456 U.S. 1010; People v. Johnson, 209 A.D.2d 721; People v. Diaz, 194 A.D.2d 688; People v. Denny, 177 A.D.2d 589, 590; People v. Wilkerson, 108 A.D.2d 831). Where, as here, the defendant fails to move to reopen a suppression hearing, he or she may not rely upon the trial testimony to challenge the suppression ruling ( see, People v. Johnson, supra; People v. Diaz, supra; People v. Denny, supra; People v. Wilkerson, supra).
The defendant contends that the defense counsel's elicitation of the underlying facts of a prior conviction after achieving its exclusion following the Sandoval hearing ( see, People v. Sandoval, 34 N.Y.2d 371), constituted ineffective assistance of counsel requiring reversal of his conviction ( see, e.g., People v. Ofunniyin, 114 A.D.2d 1045, 1046-1047). However, contrary to the defendant's contention, the record demonstrates that the trial court had in fact ruled that the underlying facts of that prior conviction could be elicited by the prosecutor on cross-examination.
The defendant's sentence was not excessive ( see, People v. Suitte, 90 A.D.2d 80). The fact that the defendant suffers from a heart condition does not warrant the reduction of his sentence ( see, People v. Chesnard, 175 A.D.2d 254; People v. Kelsky, 144 A.D.2d 386).
The defendant's remaining contentions, including those raised in his pro se supplemental brief, are either unpreserved for appellate review or without merit.
Miller, J.P., Sullivan, Pizzuto and Friedmann, JJ., concur.