Opinion
June 18, 1999
Appeal from Judgment of Erie County Court, D'Amico, J. — Attempted Murder, 2nd Degree.
PRESENT: HAYES, J. P., WISNER, PIGOTT, JR., SCUDDER AND CALLAHAN, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him following a jury trial of attempted murder in the second degree (Penal Law § 110.00, 125.25 Penal [1]), assault in the first degree (Penal Law § 120.10) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01). We reject the contention of defendant that his clothing, seized from his work locker, should be suppressed. The police arrested defendant at his place of employment after he was named as a suspect in a stabbing incident. Defendant gave his co-worker and a police officer consent to open his locker to retrieve his jacket ( see, People v. Adams, 53 N.Y.2d 1, 8, rearg denied 54 N.Y.2d 832, cert denied 454 U.S. 854; People v. Cosine, 48 N.Y.2d 286, 290), and the blood-stained clothing seized from the locker was in plain view ( see, Horton v. California, 496 U.S. 128, 133-137; People v. Diaz, 81 N.Y.2d 106, 110). The verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495), and the sentence is neither unduly harsh nor severe.