| People v Jogie |
| 2008 NY Slip Op 04885 [51 AD3d 1038] |
| May 27, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v BrianJogie, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Ilisa T. Fleischerof counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Berkowitz,J.), rendered March 20, 2007, convicting him of robbery in the first degree, criminal possessionof a weapon in the second degree, and criminal possession of a weapon in the third degree, upona jury verdict, and sentencing him to concurrent determinate terms of imprisonment of 23 yearsfor robbery in the first degree, 15 years for criminal possession of a weapon in the second degree,and 7 years for criminal possession of a weapon in the third degree. The appeal brings up forreview the denial, after a hearing, of those branches of the defendant's omnibus motion whichwere to suppress physical evidence and his statements to law enforcement officials.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the determinate term of imprisonment of 23 years imposed on the conviction of robberyin the first degree to a determinate term of imprisonment of 17 years; as so modified, thejudgment is affirmed.
The defendant contends that he was denied the effective assistance of counsel and his right toprocedural due process during a suppression hearing. However, certain of these claims rely onmatter dehors the record which are not reviewable on direct appeal (see People v Finch,279 AD2d 588 [2001]; People v DeLeon, 278 AD2d 425, 426 [2000]). To the extentthey are reviewable, the record demonstrates that the defendant was afforded meaningfulrepresentation (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi,54 NY2d 137, 147 [1981]).
"[C]redibility determinations of the hearing court are entitled to great deference on appeal,[*2]and its conclusions will not be set aside unless manifestlyerroneous or unsupported by the record" (People v Rivera, 27 AD3d 489, 490 [2006];see People v Sutherland, 40 AD3d 890, 891 [2007]; People v Bell, 18 AD3d 881,882 [2005]). Here, the hearing record amply supports the hearing court's determination to creditthe police testimony, as well as the court's factual findings that the stop of the defendant's vehiclewas based upon reasonable suspicion. In this regard, the radio description of the vehicle involvedin a robbery less than five minutes earlier and 2½ blocks away from the scene substantiallymatched that of the vehicle the defendant was driving (see People v Hicks, 68 NY2d 234,238 [1986]; People v McCoy, 30 AD3d 441, 442 [2006]; People v Devorce, 293AD2d 550 [2002]; People v Flanagan, 224 AD2d 633 [1996]; People v Bloise,150 AD2d 382, 382-383 [1989]). Accordingly, that branch of the defendant's omnibusmotion which was to suppress physical evidence was properly denied.
The County Court properly denied the defendant's motion to dismiss the first count of theindictment. The indictment afforded the defendant fair notice of the charges against him and wasnot jurisdictionally defective (see CPL 200.50 [7]; People v Ray, 71 NY2d 849,850 [1988]; People v Morris, 61 NY2d 290, 293 [1984]; People v Iannone, 45NY2d 589, 594-595 [1978]; People v Dudley, 289 AD2d 503, 503-504 [2001];People v Laporte, 184 AD2d 803, 804 [1992]).
The sentence imposed was excessive to the extent indicated herein.
The defendant's remaining contentions are without merit. Fisher, J.P., Santucci, Balkin andBelen, JJ., concur.