| People v Crawford |
| 2009 NY Slip Op 03010 [61 AD3d 773] |
| April 14, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Flexton Crawford, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'HaraGillespie of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Leventhal,J.), rendered January 9, 2007, convicting him of criminal contempt in the first degree, upon ajury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing,of that branch of the defendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
Under the circumstances presented here, the improper commencement of jury selectionbefore determination of the defendant's motion to suppress evidence (see CPL 710.40[3]; People v Blowe, 130 AD2d 668 [1987]) is not a basis for reversing the defendant'sconviction, as there was overwhelming evidence of the defendant's guilt, and no significantprobability that the error contributed to his conviction (see People v Gonzalez, 214AD2d 451 [1995]; People v Lloyd, 141 AD2d 669, 670-671 [1988]; People vGaddy, 42 AD2d 735 [1973]; see generally People v Crimmins, 36 NY2d 230,241-242 [1975]; People v Lacewell,44 AD3d 876, 877 [2007]).
The Supreme Court properly denied that branch of the defendant's omnibus motion whichwas to suppress the knife and hammer found in the apartment shared by the complainant and thedefendant. The police officer who found the items lawfully entered the apartment after he wastold by the complainant that she had been assaulted with a knife and a hammer (see People vMitchell, 39 NY2d 173 [1976]; People v Desmarat, 38 AD3d 913, 914-915 [2007]), whereupon hefound the items in plain view (see People v Diaz, 81 NY2d 106 [1993]). The defendant'scontention that the People failed [*2]to carry their burden at thesuppression hearing because they failed to produce the police officers who had first entered theapartment is unpreserved for appellate review, as the defendant failed to make that argument atthe hearing (see CPL 470.05 [2]; People v Dancey, 57 NY2d 1033 [1982]). Inany event, his contention is without merit, as there is no evidence that those officers possessedmaterial evidence with respect to the circumstances in which the knife and hammer were found(see People v Witherspoon, 66 NY2d 973 [1985]; People v Mack, 224 AD2d 447[1996]). Spolzino, J.P., Florio, Miller and Eng, JJ., concur.