| People v Guerrero |
| 2015 NY Slip Op 05496 [129 AD3d 1102] |
| June 24, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dario Guerrero, Appellant. |
Joseph F. DeFelice, Kew Gardens, N.Y., for appellant.
Madeline Singas, Acting District Attorney, Mineola, N.Y. (Yael V. Levy of counsel;W. Thomas Hughes on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Ayres, J.), rendered August 23, 2013, convicting him of criminal possession of acontrolled substance in the fourth degree, criminal possession of a controlled substancein the seventh degree, hindering prosecution in the second degree, resisting arrest,criminal facilitation in the fourth degree, escape in the third degree, and attemptedunlawful imprisonment in the second degree, upon a jury verdict, and imposing sentence.The appeal brings up for review the denial, after a hearing pursuant to a stipulation inlieu of motions (Calabrese, J.), of the suppression of the defendant's statements to lawenforcement officials.
Ordered that the judgment is modified, on the law, by vacating the conviction ofcriminal possession of a controlled substance in the seventh degree, vacating the sentenceimposed thereon, and dismissing that count of the indictment; as so modified, thejudgment is affirmed.
The Supreme Court properly denied suppression of the defendant's statements to lawenforcement officials. The evidence presented at the suppression hearing demonstratedthat the defendant knowingly, intelligently, and voluntarily waived his Mirandarights (see Miranda v Arizona, 384 US 436 [1966]), including his right to counsel(see People v Foote, 259 AD2d 630 [1999]). Furthermore, the defendant's requestto speak with his daughter was not the legal equivalent of a request to exercise theconstitutionally protected right to counsel (see People v Fuschino, 59 NY2d 91,100 [1983]; People v Washington, 209 AD2d 817, 819 [1994]).
The defendant's contention that his convictions of criminal possession of a controlledsubstance in the fourth degree, criminal possession of a controlled substance in theseventh degree, and hindering prosecution in the second degree were not supported bylegally sufficient evidence is unpreserved for appellate review (see CPL 470.05[2]). In any event, viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legallysufficient to establish the defendant's guilt of those crimes beyond a reasonable doubt.Moreover, upon the exercise of our factual review power, we are satisfied that the verdictof guilt on those counts was not against the weight of the evidence (see CPL470.15 [5]; People vRomero, 7 NY3d 633 [2006]). However, as the People correctly concede, thedefendant's conviction of criminal possession of a controlled substance in the seventhdegree must be vacated, and that count of the [*2]indictment dismissed, as that count was an inclusoryconcurrent count of criminal possession of a controlled substance in the fourth degree(see CPL 300.40 [3]; People v Quarless, 123 AD3d 1060, 1061 [2014];People v Mann, 231 AD2d 914 [1996]).
The defendant's contention that the sentence imposed was improperly based on thecrimes of which he was acquitted is unpreserved for appellate review (see CPL470.05 [2]; People vDubois, 116 AD3d 878, 878-879 [2014]). In any event, viewing the sentencingcourt's comments as a whole, it is clear that the sentence imposed was not based uponcrimes of which the defendant was acquitted (see People v Morgan, 27 AD3d 579, 580 [2006];People v Robinson, 250 AD2d 629 [1998]). Moreover, the sentence imposed wasnot excessive (see People v Suitte, 90 AD2d 80 [1982]). Balkin, J.P., Roman,Maltese and Barros, JJ., concur.