People v. Muriello
| Decision Date | 23 March 2010 |
| Citation | 898 N.Y.S.2d 566,71 A.D.3d 1050 |
| Parties | The PEOPLE, etc., respondent, v. Pedro MURIELLO, appellant. |
| Court | New York Supreme Court — Appellate Division |
Lynn W.L. Fahey, New York, N.Y. (Anna Pervukhin and Steven R. Bernhard of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Anastasia Spanakos of counsel), for respondent.
REINALDO E. RIVERA, J.P., ANITA R. FLORIO, DANIEL D. ANGIOLILLO, and ARIEL E. BELEN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered May 9, 2007, convicting him of criminal possession of a controlled substance in the first degree and criminal possession of a forged instrument in the second degree, upon a jury verdict, and sentencing him to a determinate term of imprisonment of 18 years on the conviction of criminal possession of a controlled substance in the first degree and an indeterminate term of imprisonment of 2 to 6 years on the conviction of criminal possession of a forgedinstrument in the second degree, to run concurrently with each other. The appeal brings up for review the denial (Grosso, J.), after a hearing (Demakos, J.H.O.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is modified, on the law, the facts, and as a matter of discretion in the interest of justice, byvacating the sentence imposed on the conviction of criminal possession of a controlled substance in the first degree; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing on the conviction of criminal possession of a controlled substance in the first degree to a determinate term of imprisonment of 13 years and to properly include a period of postrelease supervision.
The Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress physical evidence. The defendant contends that the arresting detective's testimony was incredible as a matter of law and patently tailored to meet constitutional objections. This contention is unpreserved for appellate review because he did not raise this specific contention before the hearing court ( see CPL 470.05[2]; People v. Barnwell, 40 A.D.3d 774, 775, 833 N.Y.S.2d 904; People v. Rivera, 27 A.D.3d 489, 490, 812 N.Y.S.2d 575; People v. Butler, 293 A.D.2d 686, 687, 741 N.Y.S.2d 113). In any event, the defendant's contention is without merit. "The credibility determinations of a hearing court are entitled to great deference on appeal, and will not be disturbed unless clearly unsupported by the record" ( People v. Martinez, 58 A.D.3d 870, 870-871, 873 N.Y.S.2d 128; see People v. Blankumsce, 66 A.D.3d 692, 693, 885 N.Y.S.2d 633, lv. denied 13 N.Y.3d 905, 895...
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