People v. Gold
| Decision Date | 13 April 1998 |
| Parties | 1998 N.Y. Slip Op. 3440 The PEOPLE, etc., Respondent, v. John GOLD, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Lynn W.L. Fahey, New York City (Steven R. Bernhard, of counsel), for appellant, and appellant pro se.
Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie and Seth M. Lieberman, of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Greenberg, J.), rendered February 5, 1996, convicting him of attempted robbery in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
On appeal, the defendant challenges the trial court's suppression ruling upon the ground that the trial testimony of a prosecution witness contradicted the hearing testimony of that witness. It is well settled that trial testimony may not be considered in evaluating a suppression ruling on appeal (see, People v. Riley, 70 N.Y.2d 523, 532, 522 N.Y.S.2d 842, 517 N.E.2d 520; People v. Gonzalez, 55 N.Y.2d 720, 721-722, 447 N.Y.S.2d 145, 431 N.E.2d 630, cert. denied 456 U.S. 1010, 102 S.Ct. 2304, 73 L.Ed.2d 1306; People v. Johnson, 209 A.D.2d 721, 619 N.Y.S.2d 154; People v. Diaz, 194 A.D.2d 688, 599 N.Y.S.2d 111; People v. Denny, 177 A.D.2d 589, 590, 576 N.Y.S.2d 304; People v. Wilkerson, 108 A.D.2d 831, 485 N.Y.S.2d 106). Where, as here, the defendant fails to move to reopen a suppression hearing, he or she may not rely upon the trial testimony to challenge the suppression ruling (see, People v. Johnson, supra; People v. Diaz, supra; People v. Denny, supra; People v. Wilkerson, supra).
The defendant contends that the defense counsel's elicitation of the underlying facts of a prior conviction after achieving its exclusion following the Sandoval hearing (see, People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413), constituted ineffective assistance of counsel requiring reversal of his conviction (see, e.g., People v. Ofunniyin, 114 A.D.2d 1045, 1046-1047, 495 N.Y.S.2d 485). However, contrary to the defendant's contention, the record demonstrates that the trial court had in fact ruled that the underlying facts of that prior conviction could be elicited by the prosecutor on cross-examination.
The defendant's sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675). The fact that the defendant suffers from a heart condition does not warrant the reduction...
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