| People v Eddo |
| 2008 NY Slip Op 08336 [55 AD3d 922] |
| October 28, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Olukayode Eddo, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Lori Glachman ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.), renderedJune 7, 2005, convicting him of criminal possession of a controlled substance in the third degree (twocounts) and criminal possession of a controlled substance in the fourth degree, upon a jury verdict, andsentencing him to indeterminate terms of 2 to 6 years on each of the counts of criminal possession of acontrolled substance in the third degree to run concurrently with each other, and to an indeterminateterm of 5 to 15 years on the count of criminal possession of a controlled substance in the fourth degreeto run consecutively with the other sentences. The appeal brings up for review the denial, after ahearing, of that branch of the defendant's omnibus motion which was to suppress certain physicalevidence.
Ordered that the judgment is modified, on the law, by directing that the terms of imprisonmentimposed shall run concurrently with each other; as so modified, the judgment is affirmed.
The defendant's contention that certain physical evidence recovered during a protective sweep ofhis apartment should have been suppressed is without merit. Since the police officer who recovered thatevidence, which turned out to be contraband, had articulable facts that warranted a reasonably prudentofficer's belief that the apartment might harbor an individual posing a danger to those on the scene, thatofficer properly conducted a limited protective sweep search of that area (see Maryland vBuie, 494 US 325, 334 [1990]; People v Rivera, 172 AD2d 1059 [1991]; People vFebus, 157 AD2d 380, 383-385 [1990]; People v McGaha, 144 AD2d 388, 390[1988]; cf. People v Cohen, 87 AD2d 77, 82 [1982], affd 58 NY2d 844 [1983],cert denied 461 US 930 [1983]). Further, because the contraband was found in plain view[*2]during the course of the protective sweep, it was properly seized bythe police (see People v Harrell, 208 AD2d 647 [1994]; People v Rivera, 172 AD2d1059 [1991]; People v Febus, 157 AD2d 380 [1990]; see generally Maryland v Buie,494 US at 333).
The defendant's contention that the prosecution was precluded by People v Sandoval (34NY2d 371, 375 [1974]) from inquiring into his prior convictions is unpreserved for appellate review(see CPL 470.05 [2]; People v Jones, 41 AD3d 507, 508 [2007]; People vBrito, 179 AD2d 666 [1992]), and, in any event, is without merit. The trial court did not err ingranting the People's application to modify its Sandoval ruling to permit the prosecutor toinquire, on cross-examination, into the facts of a prior youthful offender adjudication for drug salessince, on direct examination, the defendant opened the door to such questioning on cross-examination(see People v Brown, 11 AD3d 474, 475 [2004]; People v Sims, 245 AD2d 316[1997]; People v Johnson, 203 AD2d 588 [1994]).
The defendant failed to preserve his claims that the convictions were not supported by legallysufficient evidence (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]). In anyevent, viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt beyond areasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15 (5), we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
Consecutive sentences may be imposed if " 'either the elements of the crimes do not overlap or ifthe facts demonstrate that the defendant's acts underlying the crimes are separate and distinct' "(People v Jones, 41 AD3d 507, 508-509 [2007], quoting People v Ramirez, 89NY2d 444, 451 [1996]). Here, the offenses of criminal possession of a controlled substance in thethird degree (two counts) and criminal possession of a controlled substance in the fourth degree werecommitted through a single act. Accordingly, concurrent terms of imprisonment should have beenimposed (see Penal Law § 70.25 [2]; People v Smith, 209 AD2d 996, 997[1994]; People v Saa, 199 AD2d 346, 346-347 [1993]; compare People v Martinez,239 AD2d 437 [1997]).
However, the indeterminate sentence of 5 to 15 years of imprisonment, imposed for criminalpossession of a controlled substance in the fourth degree, was not excessive (see People vSuitte, 90 AD2d 80, 83 [1982]). Rivera, J.P., Lifson, Miller and Eng, JJ., concur.