| People v Garcia |
| 2008 NY Slip Op 10180 [57 AD3d 918] |
| December 23, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v Jose C.Garcia, Also Known as "Diabolico," Also Known as "The Devil,"Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Andrew R. Kass of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Rosenwasser, J.),rendered April 14, 2005, convicting him of criminal possession of a controlled substance in the firstdegree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, withouta hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The defendant's contention that the County Court improvidently exercised its discretion in removinghim from the courtroom is without merit (see generally CPL 260.20; People v Byrnes,33 NY2d 343 [1974]). The record shows that the defendant forfeited his right to be present at trial byengaging in disruptive behavior which caused his removal from the courtroom (see People vSanchez, 7 AD3d 645, 646 [2004]) and "by deliberately absenting himself from the proceedings"when he refused to return to the courtroom (People v Jenkins, 45 AD3d 864, 865 [2007];see People v Brooks, 75 NY2d 898 [1990]; People v Sanchez, 65 NY2d 436,443-444 [1985]). Likewise, the court did not improvidently exercise its discretion in denying thedefendant's requests for a substitution of assigned counsel (see People v Sanchez, 7 AD3d645, 645-646 [2004]; People v Brown, 277 AD2d 246 [2000]; People v Jessup,266 AD2d 313, 314 [1999]).
The defendant's request to charge the jury with criminal possession of a controlled substance in thethird degree (see Penal Law § 220.16 [12]) as a lesser-included offense of criminalpossession [*2]of a controlled substance in the first degree (seePenal Law § 220.21 [1]) was properly denied. The unrefuted evidence at trial established thatthe defendant possessed one-half kilogram—or 17.6 ounces—of cocaine, which is morethan twice the amount of cocaine necessary to have committed the first-degree offense. Thus, there wasno reasonable view of the evidence to support a finding that he committed the lesser offense and not thegreater (see People v Van Norstrand, 85 NY2d 131 [1995]; People v Evans, 37AD3d 847 [2007]; People v Walker, 300 AD2d 417 [2002]; People v Jackson, 220AD2d 688, 689 [1995]).
Contrary to the defendant's contention, that branch of his omnibus motion which was to suppressphysical evidence was properly denied without a hearing, since the defendant failed to provide asufficient legal basis for suppression (see CPL 710.60 [3] [a]; People v Burton, 6NY3d 584, 587 [2006]).
The defendant's contention, raised in his supplemental pro se brief, that the prosecutor presentedperjured testimony is unpreserved for appellate review, and the defendant's remaining contentions arewithout merit. Prudenti, P.J., Dillon, Eng and Leventhal, JJ., concur.