People v. Allen
| Decision Date | 26 December 1989 |
| Citation | 549 N.Y.S.2d 456,156 A.D.2d 700 |
| Parties | The PEOPLE, etc., Respondent, v. William ALLEN, Jr., Appellant. |
| Court | New York Supreme Court — Appellate Division |
John Savoca, White Plains, for appellant.
Carl A. Vergari, Dist. Atty., White Plains, (Greg M. Bernhard and Maryanne Luciano, of counsel), for respondent.
Before MOLLEN, P.J., and THOMPSON, LAWRENCE and EIBER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the County Court, Westchester County (Nicolai, J.), rendered July 9, 1987, convicting him of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress statements made by him to law enforcement authorities.
ORDERED that the judgment is affirmed.
Initially we note that the hearing court's findings that Miranda warnings were properly administered to the defendant (see, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) and that he voluntarily chose to waive his rights, are amply supported by the record. The defendant offered no evidence at the hearing to refute the proof of his intelligent waiver. Therefore, the hearing court properly denied suppression of the defendant's statement.
In addition, the court properly denied suppression of a folded dollar bill containing a tablet of LSD, which was found in a dresser drawer in the defendant's house. The search of the drawer and seizure of these items clearly fell within the scope of the search warrant (see, People v. Padilla, 132 A.D.2d 578, 517 N.Y.S.2d 299).
As to the defendant's claim of ineffective assistance of counsel, predicated upon his allegation dehors the record that counsel ignored his express desire to testify before the Grand Jury and at trial, the defendant's appropriate remedy is to bring a proceeding pursuant to CPL 440.10 (see, People v. Hamlin, 153 A.D.2d 644, 544 N.Y.S.2d 859; People v. Brown, 45 N.Y.2d 852, 410 N.Y.S.2d 287, 382 N.E.2d 1149). With respect to those allegations of ineffective assistance of counsel which are based on matters in the record, we find that the defendant has failed to demonstrate a deprivation of his right to effective assistance of counsel (see, People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400; People v. Rivera, 71 N.Y.2d...
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