| People v Romero |
| 2014 NY Slip Op 05733 [120 AD3d 947] |
| August 8, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vFelipe A. Romero, Also Known as John Doe, Appellant. |
William G. Pixley, Rochester, for defendant-appellant.
Felipe A. Romero, defendant-appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Hannah Stith Long of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered February 2, 2010. The judgment convicted defendant, upon a jury verdict,of conspiracy in the second degree, criminal possession of a controlled substance in thefirst degree, criminal possession of a controlled substance in the third degree andattempted criminal sale of a controlled substance in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice by reducing the sentence of imprisonmentimposed for criminal possession of a controlled substance in the first degree, andattempted criminal sale of a controlled substance in the first degree to determinate termsof 10 years, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of conspiracy in the second degree (Penal Law § 105.15), criminalpossession of a controlled substance in the first degree (§ 220.21 [1]),criminal possession of a controlled substance in the third degree (§ 220.16[1]), and attempted criminal sale of a controlled substance in the first degree(§§ 110.00, 220.43 [1]). Defendant contends that the People failed tomeet their burden of establishing the legality of the police conduct in seizing his vehicleuntil a search warrant could be obtained (see generally People v Di Stefano, 38NY2d 640, 652 [1976]). Defendant agrees that the People established that they hadreasonable suspicion to stop his vehicle by presenting the testimony of a police officersummarizing the information obtained by the police from eavesdropping warrants. Weconclude that the People further established that the reasonable suspicion ripened intoprobable cause following the alert of a narcotics-sniffing canine (see People v Devone, 57 AD3d1240, 1243 [2008], affd 15 NY3d 106 [2010]; People v Estrella, 48 AD3d1283, 1285 [2008], affd 10 NY3d 945 [2008], cert denied 555 US1032 [2008]). Contrary to defendant's contention, Supreme Court did not err in relyingon hearsay evidence, i.e., the search warrant application containing the police officers'sworn accounts of the canine alert (see CPL 710.60 [4]; People vEdwards, 95 NY2d 486, 491 [2000]; People v Brink, 31 AD3d 1139, 1140 [2006], lvdenied 7 NY3d 865 [2006]).
We agree with defendant, however, that the sentence is unduly harsh and severeinsofar as the court imposed determinate terms of imprisonment of 16 years for criminalpossession of a controlled substance in the first degree and attempted criminal sale of acontrolled substance in the first degree, particularly in light of the sentences received bycodefendants. As a matter of discretion in the interest of justice (see CPL 470.15[6] [b]), we therefore modify the judgment by reducing the determinate terms ofimprisonment imposed on those counts to 10 years.
Defendant contends in his pro se supplemental brief that the indictment should bedismissed because the People failed to provide a copy of the eavesdropping warrantwithin 15 days after arraignment (see CPL 700.70). That contention is notpreserved for our review (see [*2]People vHighsmith, 254 AD2d 768, 769 [1998], lv denied 92 NY2d 983 [1998],reconsideration denied 92 NY2d 1033 [1998]; see also People v Murphy, 28AD3d 1096, 1096 [2006], lv denied 7 NY3d 760 [2006]) and, in any event,it is without merit. The record establishes that the court granted the People a 75-dayextension of time upon their showing of good cause and the absence of prejudice todefendant (see CPL 700.70). We reject defendant's further contention in his prose supplemental brief that he received ineffective assistance of counsel. Viewing theevidence, the law, and the circumstances of the case, in totality and as of the time of therepresentation, we conclude that defense counsel provided meaningful representation(see generally People v Baldi, 54 NY2d 137, 147 [1981]). We have consideredthe remaining contentions raised in defendant's pro se supplemental brief and concludethat they are without merit. Present—Centra, J.P., Lindley, Sconiers andDeJoseph, JJ.