People v. Blankumsee

119 A.D.2d 584, 500 N.Y.S.2d 753, 1986 N.Y. App. Div. LEXIS 55513

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 1986
• Status: Published

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lerner, J.), rendered January 17, 1983, convicting him of two counts of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence as a second felony offender. The appeal brings up for review the denial (Rubin, J.), after a hearing, of that branch of the defendant’s omnibus motion which was to suppress evidence.

Judgment affirmed.

Viewing the evidence in the light most favorable to the People, the defendant’s guilt was proven beyond a reasonable doubt (see, Penal Law § 265.02; People v Malizia, 62 NY2d 755, 757, cert denied 469 US 932). Testimony that the defendant was on probation was met with an immediate instruction that the statement be disregarded, and did not deny the defendant a fair trial (see, People v Santiago, 52 NY2d 865, 866). That branch of the defendant’s omnibus motion which was to suppress evidence was properly denied, since the gun had been abandoned by him prior to his arrest (see, People v Chestnut, 91 AD2d 981, 982).

The court properly denied the adjournment requested by defense counsel at sentencing. The defendant merely averred that he could not recall being advised of two specific trial rights upon pleading guilty to a prior felony in 1979. In light of People v Harris (61 NY2d 9), this assertion was an insufficient basis upon which to order a hearing to determine whether the prior plea was obtained in violation of the defendant’s constitutional rights. Thus, the defendant was properly sentenced as a second felony offender. Lazer, J. P., Rubin, Lawrence and Kooper, JJ., concur.