People v Costa

People v Costa 2017 NY Slip Op 05674 Decided on July 13, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 13, 2017
Sweeny, J.P., Mazzarelli, Webber, Kahn, Kern, JJ.
3985N/12 4444 4679/13 4443

[*1]The People of the State of New York, Respondent,

v

Ted Costa, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Brittany N. Francis of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Oliver McDonald of counsel), for respondent.

Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered April 16, 2014, as amended, June 11, 2014, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him to a term of five years, and judgment, same court and Justice, rendered February 4, 2015, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree, and sentencing him to a concurrent term of eight years, unanimously affirmed.

The court properly denied defendant's suppression motion regarding the third-degree possession charge. There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]; see also People v Lewis, 136 AD3d 468 [1st Dept 2016], lv denied 27 NY3d 1001 [2016]). Defendant's challenge to the officer's credibility cites matters that were not introduced at the suppression hearing and thus are not properly before us (see People v Dukes, 284 AD2d 236 [1st Dept 2001], lv denied 97 NY2d 681 [2001]).

The court properly denied defendant's motion challenging the search warrant regarding the second-degree possession charge. Based on our in camera review of the unredacted search warrant affidavit, we conclude that the supporting affidavit clearly established probable cause under the Aguilar-Spinelli test (see

Spinelli v United States, 393 US 410 [1969]; Aguilar v Texas, 378 US 108 [1964]).

We perceive no basis for reducing the sentences.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 13, 2017

CLERK