| People v Velez |
| 2010 NY Slip Op 01387 [70 AD3d 1191] |
| February 18, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jose Velez,Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Schenectady County (Hoye,J.), rendered October 15, 2008, convicting defendant upon his plea of guilty of the crimes ofburglary in the second degree, grand larceny in the fourth degree and petit larceny.
Defendant entered a residence, from which he stole a credit card and coins. He was indictedon one count each of burglary in the second degree, grand larceny in the fourth degree and petitlarceny. County Court (Berke, J.H.O.), after holding a combined Huntley/Wade hearing,determined that defendant's statement to police and the photo array identification of defendant bytwo residents of the house were obtained in accordance with defendant's constitutional rights.Defendant pleaded guilty to the indictment. County Court (Hoye, J.) sentenced defendant toconcurrent terms, the longest of which was eight years in prison with five years of postreleasesupervision. Defendant appeals. We affirm.
County Court (Berke, J.H.O.) correctly denied defendant's motion to suppress the pretrialidentification. The photo arrays and unrebutted hearing testimony established that theidentification procedures employed were reasonable and not suggestive (see People v Asai, 66 AD3d 1138,1140-1141 [2009]; People vChatham, 55 AD3d 1045, 1045-1046 [2008]). Defendant contends that theidentifications were improper because the residents did not witness [*2]the crime and could only identify the perpetrator based on theirreview of a videotape which recorded the burglary. Yet the court's decision only held that theidentification procedure was appropriate and did not violate defendant's constitutional rights.The court did not rule the identifications admissible at trial; defense counsel still could haveobjected at trial that the identifications were inadmissible on other grounds. The court alsocorrectly denied defendant's motion to suppress his written statement. The statement wasobtained after defendant waived his Miranda rights and agreed to voluntarily speak withpolice, without any threats or promises made (see People v Davis, 18 AD3d 1016, 1017 [2005], lv denied5 NY3d 805 [2005]).
Defendant received the effective assistance of counsel. The only alleged error raised bydefendant is counsel's failure to object to the admission of the photo arrays and defendant'sstatement to police. However, these items were admitted at the suppression hearing, not at trial.The photo arrays and statement were necessarily admissible at such a hearing, as County Court(Berke, J.H.O.) needed to review them to determine defendant's suppression motions. Hence,defendant has not pointed to any actual error committed by his counsel (see People v Fairley, 63 AD3d1288, 1290 [2009], lv denied 13 NY3d 743 [2009]).
As defendant has not moved to withdraw his plea or vacate his judgment of conviction, wewill not review his unpreserved challenge to the voluntariness of his plea (see People v Brady, 59 AD3d748, 748 [2009]; People vRobles, 53 AD3d 686, 687 [2008], lv denied 11 NY3d 794 [2008]). CountyCourt (Hoye, J.) imposed a sentence that was far less than the statutory maximum and in themiddle of the capped range set forth at the time of the plea. Considering the circumstances anddefendant's criminal history, which included five prior felony convictions, we will not disturb thesentence imposed (see People v Fairley, 63 AD3d at 1290; People v Figueroa, 53 AD3d 779,781 [2008], lv denied 11 NY3d 832 [2008]).
Cardona, P.J., Mercure, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.