| People v Martinez |
| 2016 NY Slip Op 05437 [141 AD3d 429] |
| July 7, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Anthony Martinez, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel),for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Courtney M. Wen of counsel), forrespondent.
Judgment, Supreme Court, New York County (Charles H. Solomon, J.), renderedAugust 5, 2014, convicting defendant, upon his plea of guilty, of criminal possession of acontrolled substance in the third degree, and sentencing him, as a second drug felonyoffender previously convicted of a violent felony, to a term of six years, unanimouslyaffirmed.
The court properly exercised its discretion in granting the People's motion toresubmit the charge to a second grand jury, since "[t]he fact that after the first submissionthere were insufficient votes to either indict or dismiss was a legitimate reason for a newsubmission" (People vPryor, 5 AD3d 222, 223 [1st Dept 2004], lv denied 3 NY3d 661 [2004];see also People v Credle, 17NY3d 556, 562 [2011]). Moreover, the court's exercise of discretion wasindependently supported by the People's "showing that new evidence ha[d] beendiscovered" (People v Jones, 206 AD2d 82, 86 [1st Dept 1994], affd 86NY2d 493 [1995]).
Although "[e]x parte proceedings are undesirable, and they should be rare" (People v Carr, 25 NY3d105, 111 [2015]), defendant was not deprived of his right to counsel by the ex partefiling of the People's affirmation in support of that motion and the court's order grantingthe motion, given that defense counsel received notice of the People's intention to moveto resubmit the charge, and counsel repeatedly objected to the motion (see People vTaylor, 187 Misc 2d 321, 323-324 [Sup Ct, Kings County 2001]; People vLadsen, 111 Misc 2d 374, 377 [Sup Ct, NY County 1981]).
The court properly denied defendant's suppression motion. There is no basis fordisturbing the court's credibility determinations. An officer's delay in recovering a bag ofcocaine after observing it was satisfactorily explained and does not warrant a finding thatthe events described by the officer were inherently implausible.Concur—Mazzarelli, J.P., Friedman, Andrias, Webber and Gesmer, JJ.