People v. Esteves
| Decision Date | 24 May 2001 |
| Parties | (A.D. 2 Dept. 2001) THE PEOPLE, ETC., RESPONDENT, v. JOHN ESTEVES, APPELLANT. (IND. NO. 2334/96) 1997-06991 2000-03752 : SECOND JUDICIAL DEPARTMENT Argued- |
| Court | New York Supreme Court — Appellate Division |
Peter Bark, Brooklyn, N.Y., and Robert C. Mitchell (Robert B. Kennedy of counsel), for appellant (separate briefs filed).
James M. Catterson, Jr., District Attorney, Riverhead, N.Y. (Michael J. Miller and Marion M. Tang of counsel), for respondent.
William D. Friedmann, J.P., Anita R. Florio, Nancy E. Smith, Barry A. Cozier, JJ.
Appeal by the defendant (1) from a judgment of the County Court, Suffolk County (Weissman, J.), rendered July 22, 1997, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence, and (2), as limited by his motion, from an amended sentence of the same court (Spinner, J.), imposed March 31, 2000, on the ground that the amended sentence is excessive and/or illegal. 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 he made to the police.
ORDERED that the judgment and the amended sentence are affirmed.
Contrary to the defendant's contention, he was not deprived of effective assistance of counsel at trial (see, People v Benevento, 91 N.Y.2d 708; People v Hobot, 84 N.Y.2d 1021). Counsel's failure to obtain a Mapp hearing (see, Mapp v Ohio, 367 U.S. 643) "did not prejudice the defense or defendant's right to a fair trial" (People v Hobot, supra, at 1024; see, People v Gamble, 215 A.D.2d 688), as the record before the hearing court demonstrates that the police had probable cause to arrest the defendant (see, People v Hoover, 251 A.D.2d 348; People v Bryant, 225 A.D.2d 786; People v Guerra, 199 A.D.2d 412).
The defendant's contention that the amended sentence was illegal and/or excessive is without merit. When the defendant admitted to a violation of probation, the court warned him that it would not be bound by the agreed upon sentence of one to three years, and would in fact impose an enhanced sentence, if the defendant was subsequently re-arrested prior to his resentencing. Upon learning that the defendant had been re-arrested prior to resentencing, the court sentenced the defendant to two to six years imprisonment. Under these circumstances, the sentencing court was not bound by its original sentence promise, and it could unilaterally impose an enhanced sentence (see, People v Thorpe, 189 A.D.2d 903). In addition, the sentence imposed was not excessive (see, People v Suitte, 90 A.D.2d 80).
FLORIO, J., dissents and votes to reverse the judgment, dismiss the appeal from the amended sentence as academic, and remit the matter for a new hearing.
In my opinion, the combination of the initial failure of the defendant's attorney to submit adequate moving papers, together with the County Court's error in thereafter denying the defendant's motion to reopen the hearing to include the issue of probable cause, requires reversal and the granting of a new hearing.
The defendant's attorney made an omnibus motion seeking to suppress his statements to the police. As grounds for such relief, he alleged generally, inter alia, that his client's statements "were obtained as the fruit of an unlawful arrest." The County Court granted the defendant a Huntley hearing (se...
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