People v George Philips

People v Philips 2006 NY Slip Op 05040 [30 AD3d 620] Decided on June 20, 2006 Appellate Division, Second 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 June 20, 2006
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
STEPHEN G. CRANE, J.P.
REINALDO E. RIVERA
STEVEN W. FISHER
MARK C. DILLON, JJ.
2000-03865 DECISION & ORDER

[*1]The People, etc., respondent,

v

George Philips, appellant. (Ind. No. 3717/97)




Thomas F. Liotti, Garden City, N.Y., and Lipsitz, Green,
Fahringer, Roll, Salisbury & Cambria, LLP, New York, N.Y. (Herald
Price Fahringer and Erica T. Dubno of counsel), for appellant
(one brief filed), and appellant pro se.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy
J. Smiley and Denise Pavlides of
counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (Belfi, J.), rendered April 10, 2000, convicting him of rape in the first degree, sodomy in the first degree (two counts), and attempted sodomy in the first degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress identification testimony, his statements to law enforcement officials, and physical evidence.

ORDERED that the judgment is affirmed.

The arresting officer had probable cause to arrest the defendant pursuant to the "fellow officer rule" (see People v Ramirez-Portoreal, 88 NY2d 99, 113-114; People v Parris, 83 NY2d 342; People v Lypka, 36 NY2d 210, 213; People v Artist, 300 AD2d 671).

The defendant's contention that the County Court improperly denied that branch of his omnibus motion which was to suppress inculpatory statements he made after his arrest is partly unpreserved for appellate review (see CPL 470.05[2]). The defendant never argued before the hearing court that questioning by Detective Partee could commence only after "such a definite, [*2]pronounced break in the questioning that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning" (People v Robertson, 133 AD2d 355; see CPL 470.05[2]; People v Cherry, 302 AD2d 472). In any event, there is no basis for disturbing the factual findings and credibility determinations of the hearing court, which are entitled to great deference on appeal (see People v Prochilo, 41 NY2d 759, 761; People v Lawes, 15 AD3d 417, 418; People v Guarino, 267 AD2d 324, 325). The record supports the hearing court's finding that the statements were voluntarily made after the defendant waived his Miranda rights (see Miranda v Arizona, 384 US 436; People v Tissiera, 22 AD3d 611).

The defendant's claim that the search of his vehicle was unlawful is unpreserved to the extent that he argues that the search exceeded the scope of any consent (see CPL 470.05[2]; People v Huntley, 237 AD2d 533). In any event, as the hearing court properly found, the defendant consented to the search of his car.

The defendant's contentions in point five of his brief and point four of his supplemental pro se brief regarding the court's conduct at the suppression hearing, and his contention in point six of his brief regarding the numerical composition of the lineup, are unpreserved for appellate review. The defendant's remaining contentions, including those raised in his supplemental pro se brief, are without merit, based on matter dehors the record, or were forfeited by the defendant's plea of guilty.
CRANE, J.P., RIVERA, FISHER and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court