| People v Wahhab |
| 2011 NY Slip Op 04079 [84 AD3d 982] |
| May 10, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Yaseen Wahhab, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco, RichardLongworth Hecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Adler,J.), rendered April 3, 2008, convicting him of burglary in the third degree and attempted petitlarceny, 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 suppress physicalevidence.
Ordered that the judgment is affirmed.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here,we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
Contrary to the People's contention, that branch of the defendant's pretrial omnibus motionwhich was to suppress physical evidence seized from his vehicle should not have been denied,without a hearing, on the ground that the defendant lacked standing to challenge the search of thevehicle. The defendant's motion papers contained "sworn allegations sufficient to raise standingas an issue of fact" (People v Whitfield, 81 NY2d 904, 906 [1993]; see CPL710.60 [1]) and, in response, the People did not dispute those allegations (cf. People vCarter, 86 NY2d 721, 722-723 [1995]). Although the Supreme Court failed to considerwhether the warrant pursuant to which the vehicle was searched was supported by probablecause, this Court "has the authority to make determinations of fact and law where the hearingrecord is sufficient" (People v Mitchell, 290 AD2d 518, 518 [2002]). Upon our review ofthe record, we conclude that the police had probable cause and the defendant was not entitled tosuppression of the evidence seized from the vehicle. Although the defendant's statement to thepolice admitting that the vehicle was his, recited in the search warrant application, was properlysuppressed and must be disregarded, since it was elicited from the defendant without the benefitof Miranda warnings (see Miranda v Arizona, 384 US 436 [1966]), the remaininginformation contained in the application was sufficient to establish probable cause to believe thatthe vehicle had been used in connection with the commission of a burglary (cf. People vTambe, 71 NY2d 492, 505 [1988]; People v Hernandez, 247 AD2d 912 [1998]).[*2]
The defendant's contention that the People improperlyintroduced and commented on evidence that allegedly had been precluded by the trial court isunpreserved for appellate review and, in any event, without merit.
The Supreme Court providently exercised its discretion in denying the defendant's midtrialrequest to file a late notice of alibi, as the defendant failed to show good cause for extending theperiod for service of such notice (see CPL 250.20 [1]; People v Delacruz, 13 AD3d 642 [2004]).
The defendant's contention that the Supreme Court, upon dismissing a juror for misconductat the defendant's request, should have conducted a further inquiry of the juror or granted amistrial is unpreserved for appellate review and, in any event, without merit.
The defendant's contention that he was deprived of the effective assistance of counselbecause his trial attorney failed to conduct an adequate investigation, including the timelyprocurement of alibi witnesses, is based on matter dehors the record, which cannot be reviewedon direct appeal (see People vDunbar, 74 AD3d 1227 [2010]; People v Holland, 44 AD3d 874 [2007]). The defendant'sadditional contentions regarding ineffective assistance of counsel are without merit. Prudenti,P.J., Eng, Belen and Sgroi, JJ., concur.