People v. Kasparek

• Decision Date: 07 June 1991
• Parties: PEOPLE of the State of New York, Respondent, v. Martin W. KASPAREK, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 129

572 N.Y.S.2d 129

174 A.D.2d 970

PEOPLE of the State of New York, Respondent, v. Martin W. KASPAREK, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

June 7, 1991.

Frank Policelli, Utica, for appellant.

Barry M. Donalty by Raymond Tarkowski, Utica, for respondent.

Before DILLON, P.J., and DENMAN, LAWTON, LOWERY and DAVIS, JJ.

MEMORANDUM:

We reject defendant's contention that County Court abused its discretion in summarily denying his motion to suppress the evidence seized from his vehicle. Defendant signed a written consent to the search and did not contend that it was unlawful until more than 300 days had elapsed after his arraignment. No good cause was shown for his delay, and the motion was properly denied as untimely (see, People v. Turner, 49 N.Y.2d 925, 428 N.Y.S.2d 619, 406 N.E.2d 436; People v. Colon, 127 A.D.2d 678, 511 N.Y.S.2d 674, affd 71 N.Y.2d 410, 526 N.Y.S.2d 932, 521 N.E.2d 1075, cert. denied 487 U.S. 1239, 108 S.Ct. 2911, 101 L.Ed.2d 943; People v. Sturgis, 112 A.D.2d 757, 492 N.Y.S.2d 257, lv. denied 68 N.Y.2d 817, 918, 507 N.Y.S.2d 1036, 499 N.E.2d 885; see also, CPL 710.40[2].

We also reject defendant's contention that he was denied a fair trial because his statement to the police was used against him even though the prosecution served no notice pursuant to CPL 710.30. That statement was not used by the People until after defendant had opened the door to its use by eliciting testimony about the statement on cross-examination of a prosecution witness. In these circumstances, there was no error in permitting the statement to be used against defendant (see, People v. Connor, 157 A.D.2d 739, 550 N.Y.S.2d 34, lv. denied 76 N.Y.2d 732, 558 N.Y.S.2d 894, 557 N.E.2d 1190; People v. Mitchell, 155 A.D.2d 879, 547 N.Y.S.2d 486, lv. denied 76 N.Y.2d 739, 558 N.Y.S.2d 901, 557 N.E.2d 1197; see also, People v. Green, 155 A.D.2d 880, 547 N.Y.S.2d 715, lv. denied 75 N.Y.2d 813, 552 N.Y.S.2d 563, 551 N.E.2d 1241).

Finally, we conclude that the trial court, after a probing and tactful inquiry, properly concluded that two jurors were grossly unqualified by reason of juror misconduct and discharged them from the jury (see, CPL 270.35; see also, People v. Cannady, 138 A.D.2d 616, 526 N.Y.S.2d 202, lv. denied 71 N.Y.2d 1024, 530 N.Y.S.2d 559, 526 N.E.2d 51; People v. Benson, 123 A.D.2d 470, 506 N.Y.S.2d 480, lv. denied 69 N.Y.2d 708, 512 N.Y.S.2d 1034, 504 N.E.2d 402; see also, People v. Lilly, 139 A.D.2d 671, 527 N.Y.S.2d 433, lv. denied 72 N.Y.2d 862, 532 N.Y.S.2d 512, 528 N.E.2d 902).

We have examined defendant's other contention and find it to be without merit.

Judgment unanimously affirmed.