| People v Winkfield |
| 2007 NY Slip Op 07894 [44 AD3d 499] |
| October 18, 2007 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v GradyWinkfield, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Eric Rosen of counsel), forrespondent.
Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered April 5, 2006,convicting defendant, after a jury trial, of two counts each of robbery in the second degree andattempted robbery in the second degree, and sentencing him, as a second felony offender, to anaggregate term of 10 years, unanimously affirmed.
The court properly denied defendant's suppression motion. There is no basis for disturbingthe court's credibility determinations, which are supported by the record (see People vProchilo, 41 NY2d 759, 761 [1977]). The evidence established that the police had reasonablesuspicion to stop the livery cab in which defendant was riding. Furthermore, the court properlyexercised its discretion when it denied defendant's application, made during trial, to reopen thehearing for the purpose of bringing in the livery cab driver who would allegedly contradict anofficer's testimony concerning his ability to make certain observations. Defendant failed toestablish that he could not have discovered this information "with reasonable diligence before thedetermination of the motion" (CPL 710.40 [4]). From the inception of the case, defendant wasaware that the cab driver was a potential witness with regard to suppression issues (seePeople v Meachem, 288 AD2d 162 [2001], lv denied 97 NY2d 758 [2002]). In anyevent, we conclude that it is unlikely that the cab driver's testimony would have changed theoutcome of the suppression hearing.
The court properly denied defendant's request for new counsel (see e.g. People v Pitman, 25 AD3d 361[2006], lv denied 6 NY3d 816 [2006]). In the colloquy that followed defendant's [*2]request, he had ample opportunity to provide specific reasons forassignment of new counsel, but he made no effort to do so.
We perceive no basis to reduce the sentence. Concur—Saxe, J.P., Marlow, Williams,Sweeny and Malone, JJ.