| People v Muriello |
| 2010 NY Slip Op 02585 [71 AD3d 1050] |
| March 23, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v PedroMuriello, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and AnastasiaSpanakos of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.),rendered May 9, 2007, convicting him of criminal possession of a controlled substance in thefirst degree and criminal possession of a forged instrument in the second degree, upon a juryverdict, and sentencing him to a determinate term of imprisonment of 18 years on the convictionof criminal possession of a controlled substance in the first degree and an indeterminate term ofimprisonment of 2 to 6 years on the conviction of criminal possession of a forged instrument inthe second degree, to run concurrently with each other. The appeal brings up for review thedenial (Grosso, J.), after a hearing (Demakos, J.H.O.), of that branch of the defendant's omnibusmotion which was to suppress physical evidence.
Ordered that the judgment is modified, on the law, the facts, and as a matter of discretion inthe interest of justice, by vacating the sentence imposed on the conviction of criminal possessionof a controlled substance in the first degree; as so modified, the judgment is affirmed, and thematter is remitted to the Supreme Court, Queens County, for resentencing on the conviction ofcriminal possession of a controlled substance in the first degree to a determinate term ofimprisonment of 13 years and to properly include a period of postrelease supervision.
The Supreme Court properly denied that branch of the defendant's omnibus motion whichwas to suppress physical evidence. The defendant contends that the arresting detective'stestimony was incredible as a matter of law and patently tailored to meet constitutionalobjections. This contention is unpreserved for appellate review because he did not raise thisspecific contention before the hearing court (see CPL 470.05 [2]; People vBarnwell, 40 AD3d 774, 775 [2007]; People v Rivera, 27 AD3d 489, 490 [2006];People v Butler, 293 AD2d 686, 687 [2002]). In any event, the defendant's contention iswithout merit. "The credibility determinations of a hearing court are entitled to great deferenceon appeal, and will not be disturbed unless clearly unsupported by the record" (People vMartinez, 58 AD3d 870, 870-871 [2009]; see People v Blankumsce, 66 AD3d 692,693 [2009], lv denied 13 NY3d 905 [2009]; People v Cooks, 57 AD3d 796, 797[2008]). Here, the detective's testimony at the suppression hearing was not incredible as a matterof law, patently tailored to nullify constitutional objections, or otherwise unworthy of belief(see People v Blankumsce, 66 AD3d at 693; People v Cooks, 57 AD3d at 797;People v Rivera, 27 AD3d at 490).[*2]
The sentence imposed on the conviction of criminalpossession of a controlled substance in the first degree was excessive to the extent indicated. Inpronouncing sentence on the count of criminal possession of a controlled substance in the firstdegree, the Supreme Court erred in failing to impose a statutorily required period of postreleasesupervision. However, this error may be remedied through resentencing (see People vSparber, 10 NY3d 457 [2008]; People v Harrison, 51 AD3d 816 [2008]). Therefore,we vacate the sentence imposed on that count and remit the matter to the Supreme Court, QueensCounty, for resentencing on the conviction of criminal possession of a controlled substance inthe first degree to a determinate term of imprisonment of 13 years and to properly include aperiod of postrelease supervision as part of the sentence. Rivera, J.P., Florio, Angiolillo andBelen, JJ., concur.