Opinion
2001-08521
Argued February 14, 2003.
March 3, 2003.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.), rendered August 23, 2001, convicting him of assault in the second degree (two counts), resisting arrest, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
Mark Diamond, New York, N.Y., for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Guy Arcidiacono of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the People's resubmission of the charges to the Grand Jury after the initial dismissal of the indictment pursuant to CPL 210.20(1)(c) was timely. The record does not support the defendant's claim that the order granting the People the right to re-present the charges to the Grand Jury had set forth any particular deadline by which to do so.
The defendant failed to preserve for appellate review the issue of whether the crack cocaine recovered from his car should have been suppressed as the tainted fruit of an unlawful arrest which was not predicated upon probable cause, as he never requested a Dunaway hearing (see Dunaway v. New York, 422 U.S. 4053; People v. Leftwich, 134 A.D.2d 371). In any event, the evidence adduced at the combined Mapp/Huntley hearing (see Mapp v. Ohio, 362 U.S. 643; People v. Huntley, 15 N.Y.2d 72) was sufficient to establish that the police had probable cause to arrest the defendant, who was driving with a suspended license (see People v. Tavarez, 277 A.D.2d 260; see also Vehicle and Traffic Law § 511; Penal Law § 10.00; People v. Maldonado, 86 N.Y.2d 631). Accordingly, suppression of the crack cocaine recovered from the defendant's car was not warranted, as it was recovered in plain view and during a search incident to a lawful arrest (see People v. Tavarez, supra).
The defendant's claim that the evidence was legally insufficient to support his conviction is not preserved for appellate review (see CPL 470.05; People v. Udzinski, 146 A.D.2d 245). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Rosa, 277 A.D.2d 506; People v. Bell, 265 A.D.2d 813; People v. Lyons, 256 A.D.2d 422; People v. Thomas, 239 A.D.2d 246). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15).
The defendant received meaningful representation of counsel (see People v. Torres, 288 A.D.2d 406; People v. Esteves, 286 A.D.2d 342; People v. Reeder, 209 A.D.2d 551).
The defendant's remaining contentions either are unpreserved for appellate review or without merit.
SANTUCCI, J.P., FRIEDMANN, LUCIANO and RIVERA, JJ., concur.