People v Martinez

People v Martinez 2016 NY Slip Op 05437 Decided on July 7, 2016 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 7, 2016
Mazzarelli, J.P., Friedman, Andrias, Webber, Gesmer, JJ.
1672 3829/13

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

v

Anthony Martinez, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Courtney M. Wen of counsel), for respondent.

Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered August 5, 2014, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second drug felony offender previously convicted of a violent felony, to a term of 6 years, unanimously affirmed.

The court properly exercised its discretion in granting the People's motion to resubmit the charge to a second grand jury, since "[t]he fact that after the first submission there were insufficient votes to either indict or dismiss was a legitimate reason for a new submission" (People v Pryor, 5 AD3d 222, 223 [1st Dept 2004], lv denied 3 NY3d 661 [2004]; see also People v Credle, 17 NY3d 556, 562 [2011]). Moreover, the court's exercise of discretion was independently supported by the People's "showing that new evidence ha[d] been discovered" (People v Jones, 206 AD2d 82, 86 [1st Dept 1994], affd 86 NY2d 493 [1995]).

Although "[e]x parte proceedings are undesirable, and they should be rare" (People v Carr, 25 NY3d 105, 111 [2015]), defendant was not deprived of his right to counsel by the ex parte filing of the People's affirmation in support of that motion and the court's order granting the motion, given that defense counsel received notice of the People's intention to move to resubmit the charge, and counsel repeatedly objected to the motion (see People v Taylor, 187 Misc 2d 321, 323—324 [Sup Ct, Kings County 2011]; People v Ladsen, 111 Misc 2d 374, 377 [Sup Ct, NY County 1981]).

The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations. An officer's delay in recovering a bag of

cocaine after observing it was satisfactorily explained and does not warrant a finding that the events described by the officer were inherently implausible.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 7, 2016

DEPUTY CLERK