People v. Longwood

• Decision Date: 13 January 1986
• Citation: 497 N.Y.S.2d 450,116 A.D.2d 590
• Parties: The PEOPLE, etc., Respondent, v. Joseph LONGWOOD, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 450

497 N.Y.S.2d 450

116 A.D.2d 590

The PEOPLE, etc., Respondent, v. Joseph LONGWOOD, Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 13, 1986.

Stephen J. Pittari, White Plains (Jeanne E. Mettler, of counsel), for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Douglas J. Fitzmorris and Richard E. Weill, of counsel), for respondent.

Before LAZER, J.P., and BRACKEN, KUNZEMAN and KOOPER, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Westchester County (Houston, J.), rendered April 5, 1982, convicting him of criminal possession of stolen property in the first degree and grand larceny in the second degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

Defendant was charged with three counts of criminal possession of stolen property in the first degree and one count of grand larceny in the second degree for three sales of stolen tractor-trailer trucks and their cargoes to undercover officers on July 15, 1980, September 13, 1980, and October 15, 1980, respectively. His arrest came during the culmination of a federally-funded anti-fencing operation conducted between July 1979 and October 1980 by the Westchester County Police. Defendant claimed that he had been lured into participating in the July and October sales, and coerced into making the September sale by a police informant. He was acquitted of the charges relating to the July and October sales by reason of entrapment, but was convicted for the September sale.

Defendant contends that he was not acquitted of the September truck sale because of inadequacies in the jury charge on the entrapment defense. Although the trial court's charge differed from that which had been requested by defense counsel, it adequately apprised the jury of the law governing the defense of entrapment (see, People v. Dory, 59 N.Y.2d 121, 129, 463 N.Y.S.2d 753, 450 N.E.2d 673; People v. Dengler, 109 A.D.2d 847, 486 N.Y.S.2d 375). The statutory definition of the defense was fully narrated and the trial court took particular care to explain the operation of the burden of proof with regard to each count in the indictment.

Defendant failed to preserve for appellate review his contention that the jury verdicts were repugnant since the objection was not raised until the time of sentencing (see, People v. Satloff, 56 N.Y.2d 745, 452 N.Y.S.2d 12, 437 N.E.2d 271; People v. Stahl, 53 N.Y.2d 1048, 442 N.Y.S.2d 488, 425 N.E.2d 876).

Defendant's motion to dismiss the indictment in the interest of justice on the basis of police misconduct (CPL 210.40[1][e] ), made at the close of the People's case was procedurally defective. Such motions are intended to be pretrial motions unless they are based upon grounds which the defendant could not, with due diligence, have presented before trial (CPL 255.10, 255.20). Since defendant's entrapment defense could have been anticipated earlier, the motion was untimely. Moreover, such motions are to be made in writing, with sworn allegations of fact (see, People v. Shedrick, 104 A.D.2d 263, 482 N.Y.S.2d 939; People v. Macy, 100 A.D.2d 557, 473 N.Y.S.2d 261; People v. Ramos, 94 A.D.2d 708, 462 N.Y.S.2d 67; ...