| People v Edgeston |
| 2011 NY Slip Op 09427 [90 AD3d 1535] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ronnie M.Edgeston, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.),rendered May 8, 2008. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a weapon in the second degree and criminal possession of a weapon in the thirddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) andcriminal possession of a weapon in the third degree (§ 265.02 [1]). Defendant contendsthat Supreme Court erred in failing to dismiss the indictment based upon a variance in datesbetween the indictment and the grand jury testimony. That contention arose in the context ofdefendant's motion to dismiss the indictment based on the legal insufficiency of the evidencebefore the grand jury, however, and thus is not reviewable on this appeal from the ensuingjudgment based upon legally sufficient trial evidence (see People v Smith, 4 NY3d 806, 807-808 [2005], affg 6AD3d 1188 [2004]; see generally CPL 210.30 [6]; People v Cobb, 72 AD3d 1565, 1565-1566 [2010], lvdenied 15 NY3d 803 [2010]; Peoplev Lee, 56 AD3d 1250, 1251 [2008], lv denied 12 NY3d 818 [2009]). Contrary todefendant's further contention, we conclude that the court properly refused to suppress theweapon at issue. The evidence adduced at the suppression hearing established that the policeconduct was "justified in its inception and at every subsequent stage of the encounter"(People v Nicodemus, 247 AD2d 833, 835 [1998], lv denied 92 NY2d 858[1998]; see People v De Bour, 40 NY2d 210, 215 [1976]). Present—Smith, J.P.,Peradotto, Lindley, Green and Martoche, JJ.