People v. Boccaccio, 00-02186

• Decision Date: 09 November 2001
• Docket Number: 4,00-02186
• Parties: PEOPLE OF THE STATE OF NEW YORK,MICHELLE BOCCACCIO,KA 00-02186. (Genesee Co.) SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

V

MICHELLE BOCCACCIO, DEFENDANT-APPELLANT.

KA 00-02186. (Genesee Co.)

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT

November 9, 2001

PRESENT: GREEN, J. P., HAYES, SCUDDER, KEHOE AND BURNS, JJ.

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting her after a bench trial of criminal possession of stolen property in the fifth degree (Penal Law § 165.40) and sentencing her to a definite term of incarceration of one year. We reject the contention of defendant that she was denied due process based on County Court's failure to rule on her pretrial motion to suppress the physical evidence found in her possession. Defendant did not obtain a ruling on that motion and failed to object when the evidence was introduced at trial, and thus we conclude that she abandoned the motion (see, People v DiLenola, 245 A.D.2d 1132, 1333; see also, People v Brown, 284 A.D.2d 191; People v Champion, 273 A.D.2d 899, 900, lv denied 96 N.Y.2d 733). We further reject the contention that, in sentencing defendant, the court considered crimes of which she was acquitted. The court's comment at sentencing to which defendant refers was not a basis for the sentence imposed (cf., People v Grant, 191 A.D.2d 297, lv denied 82 N.Y.2d 719). The sentence is neither unduly harsh nor severe. (Appeal from Judgment of Genesee County Court, Punch, J. - Criminal Possession Stolen Property, 5th Degree.)

(Filed Nov. 9, 2001.)