| People v Muriel-Herrera |
| 2009 NY Slip Op 09681 [68 AD3d 1135] |
| December 22, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LuisMuriel-Herrera, Also Known as Junebo, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Lauren E. Dunnock and Andrew R.Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.),rendered February 21, 2008, convicting him of attempted robbery in the first degree, burglary inthe first degree, assault in the second degree, and criminal possession of a weapon in the fourthdegree, upon a jury 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 suppressidentification testimony.
Ordered that the judgment is affirmed.
The evidence presented at the suppression hearing established that both witnesses had toldthe police that they knew the defendant well before they were asked to identify him in a photoarray. This demonstrated that the identifications were merely confirmatory (see People vRodriguez, 79 NY2d 445 [1992]). Therefore, the County Court properly denied that branchof the defendant's motion which was to suppress identification testimony.
The defendant was not denied the effective assistance of counsel, as defense counselprovided meaningful representation (see People v Benevento, 91 NY2d 708 [1998];People v Baldi, 54 NY2d 137 [1981]).
A granting of an adjournment for any purpose is a matter of discretion for the trial court(see People v Singleton, 41 NY2d 402, 405 [1977]; People v Oskroba, 305 NY113, 117 [1953]). Here, the County Court providently exercised its discretion in denying thedefense counsel's motion for a two-week adjournment in the middle of jury selection.
The defendants' contention that the evidence was legally insufficient to establish his guiltbeyond a reasonable doubt is unpreserved for appellate review, as defense counsel merely madea general motion for a trial order of dismissal based upon the People's alleged failure to make outa prima facie case (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,491-492 [2008]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was [*2]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]).
The courts possess an inherent power to correct clerical errors (see People v Minaya,54 NY2d 360, 364 [1981], cert denied 455 US 1024 [1982]). "This power exists incriminal as well as civil cases and has been held specifically applicable to errors relating tosentence" (id. at 364 [citation omitted]). Here, the court erroneously stated that it wassentencing the defendant for criminal possession of a weapon in the fourth degree in connectionwith his conviction on count 10 of the indictment. In fact, the defendant was acquitted of count10, but convicted of criminal possession of a weapon in the fourth degree on count 11. The courtproperly corrected this error in the defendant's uniform sentence and commitment sheet, and wesee no need to remit the matter for resentencing. Moreover, the sentence imposed was notexcessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contention is unpreserved for appellate review and, in any event,is without merit. Skelos, J.P., Eng, Austin and Roman, JJ., concur.