| People v Whitehead |
| 2007 NY Slip Op 09811 [46 AD3d 715] |
| December 11, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Fabian A. Whitehead, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert Schwartz and Ilisa T. Fleischerof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (LaPera, J.),rendered March 28, 2006, convicting him of robbery in the first degree and robbery in the seconddegree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for reviewthe denial, after a hearing (Calabrese, J.), of that branch of the defendant's omnibus motion whichwas to suppress physical evidence.
Ordered that the judgment is affirmed.
The hearing court properly denied that branch of the defendant's omnibus motion which wasto suppress a handgun. The defendant, by his words and conduct, consented to the limitedwarrantless search conducted by the detective at his house (see People v Kelley, 220AD2d 456 [1995]; People v Davis, 224 AD2d 541, 543 [1996]; see also People vGonzalez, 88 NY2d 289, 293 [1996]; People v Cosme, 48 NY2d 286, 290 [1979]; People v Williams, 37 AD3d 626,627 [2007]). In light of the foregoing, the defendant's contention regarding whether there wereexigent circumstances to justify the warrantless search has been rendered academic.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt (see People v Green, 41 AD3d 862 [2007], lv denied 9NY3d 961 [2007]; People vGonzalez, 3 AD3d 579 [2004]; People v Fermin, 235 AD2d 328 [1997]).Moreover, resolution of issues of credibility is primarily a matter to be determined by the jurors,who saw and heard the witnesses, and [*2]their determinationshould be accorded great deference on appeal (see People v Romero, 7 NY3d 633, 644-645 [2006]). Upon theexercise of our factual review power (see CPL 470.07 [5]), we are satisfied that theverdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3dat 644-645).
Contrary to the defendant's contention, he was not deprived of the effective assistance ofcounsel (see People v Henry, 95 NY2d 563, 565-566 [2000]; People vBenevento, 91 NY2d 708, 713-714 [1998]).
The defendant's contention that CPL 270.10 is unconstitutional is unpreserved for appellatereview (see CPL 470.05 [2]) and, in any event, is not properly before this Court due tothe defendant's failure to notify the Attorney General that he was challenging the constitutionalityof a state statute (see CPLR 1012 [b] [1], [3]; see also People v Troy, 28 AD3d 689, 690 [2006]).
Contrary to the defendant's contention, "[i]t is well established that in reaching a sentencingdetermination, the court may consider not only prior offenses for which the defendant wasconvicted, but even offenses for which he had not been convicted" (People v Khan, 146AD2d 806, 807 [1989]; see People v Gonzalez, 242 AD2d 306, 306-307 [1997];People v Kaplan, 199 AD2d 82, 83 [1993]; see also Williams v New York, 337US 241 [1949]).
The defendant's remaining contentions are without merit. Schmidt, J.P., Skelos, Covello andBalkin, JJ., concur.