| People v Ortiz |
| 2011 NY Slip Op 06239 [87 AD3d 602] |
| August 9, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JuanOrtiz, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Lois Cullen Valerio and RichardLongworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Adler,J.), rendered September 10, 2009, convicting him of criminal possession of a weapon in the thirddegree and menacing in the second degree, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibusmotion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The Supreme Court properly denied that branch of the defendant's omnibus motion whichwas to suppress physical evidence. The People established at the suppression hearing that themachete recovered from the common porch area of the apartment building in which thedefendant resided was voluntarily relinquished to the police by the defendant's girlfriend, wholived in the apartment with the defendant. "[T]he police may lawfully conduct a warrantlesssearch when they have obtained the voluntary consent of a party who possesses the requisitedegree of authority and control over the premises or personal property in question" (People vCosme, 48 NY2d 286, 290 [1979]; see People v Williams, 37 AD3d 626, 627 [2007]).
Further, contrary to the defendant's contention, the People were not required to call thedefendant's girlfriend to testify because "hearsay evidence is admissible to establish any materialfact" at a suppression hearing (CPL 710.60 [4]; see People v Edwards, 95 NY2d 486[2000]; People v Washington, 87 NY2d 945 [1996]; People v Parris, 83 NY2d342 [1994]).
The defendant's contention that the evidence was legally insufficient to establish his guiltbeyond a reasonable doubt is unpreserved for appellate review (see People v Hawkins, 11 NY3d484, 491-492 [2008]) and, in any event, is without merit. Viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we findthat it was legally sufficient to establish the defendant's guilt of the crimes charged 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 v Romero, 7 NY3d 633[2006]).[*2]
The sentence imposed was not excessive (see Peoplev Suitte, 90 AD2d 80, 85-86 [1982]). Skelos, J.P., Belen, Hall and Roman, JJ., concur.