People v Frank

People v Frank 2011 NY Slip Op 08188 Decided on November 15, 2011 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 November 15, 2011
Andrias, J.P., Friedman, Catterson, Acosta, JJ.
5401 6415/03

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

v

Bernell Frank, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Kristina
Schwarz of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Malancha
Chanda of counsel), for respondent.

Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered May 24, 2006, convicting defendant, upon his plea of guilty, of forgery in the second degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.

Following our remittitur (65 AD3d 461 [2009]), Supreme Court conducted a hearing and properly denied the motion to suppress. Defendant's contention that Supreme Court incorrectly limited the scope of the suppression hearing to issues arising out of Payton v New York (445 US 573 [1980]) is not preserved for our review (see CPL 470.05[2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see 470.15[6][a]). Defense counsel raised no objection to the court's repeated pronouncements as to the scope of the hearing and implicitly approved the determination that the hearing would be limited to the alleged Payton violation. As an alternative holding, we find no error since our remittitur was based on our finding that defendant's counsel provided all the particulars required in a motion alleging a Payton violation and the People's response was inadequate to resolve that issue without a hearing.

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 15, 2011

CLERK