People v. Fung

Appellate Division of the Supreme Court of New York

People v. Fung

227 A.D.2d 173, 642 N.Y.S.2d 14, 1996 N.Y. App. Div. LEXIS 4822

Appellate Division of the Supreme Court of the State of New York·Decided May 7, 1996·Published·Cited by 3 cases

Opinion

Judgment, Supreme Court, Bronx County (Dominic Massaro, J.), rendered May 20, 1993, convicting defendant, after a jury trial, of manslaughter in the first degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 7 to 21 years and l1/2 to 41/2 years, respectively, unanimously affirmed.

Defendant’s general allegations in his motion papers that the search of him was "unlawful” and without a "search warrant” and defense counsel’s resting "on the record” at the suppression hearing were insufficient to preserve for appellate review his current claim that the search could not be justified as a search incident to an arrest since it was not conducted contemporaneously with his arrest, the property was not within his " 'grabbable’ area” and no exigent circumstances existed (People v Graham, 211 AD2d 55, 61, n 2, lv denied 86 NY2d 795; People v Ortiz, 189 AD2d 715, lv denied 81 NY2d 890), and we decline to review it in the interest of justice. In any event, the piece of paper recovered during the search constituted cumulative evidence of motive, and therefore, even if the item were subject to suppression, the error would be harmless beyond a reasonable doubt.

We perceive no abuse of discretion in sentencing. Concur— Ellerin, J. P., Wallach, Ross, Nardelli and Tom, JJ.

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Judgment, Supreme Court, Bronx County (Dominic Massaro, J.), rendered May 20, 1993, convicting defendant, after a jury trial, of manslaughter in the first degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 7 to 21 years and l1/2 to 41/2 years, respectively, unanimously affirmed.

Defendant’s general allegations in his motion papers that the search of him was "unlawful” and without a "search warrant” and defense counsel’s resting "on the record” at the suppression hearing were insufficient to preserve for appellate review his current claim that the search could not be justified as a search incident to an arrest since it was not conducted contemporaneously with his arrest, the property was not within his " 'grabbable’ area” and no exigent circumstances existed (People v Graham, 211 AD2d 55, 61, n 2, lv denied 86 NY2d 795; People v Ortiz, 189 AD2d 715, lv denied 81 NY2d 890), and we decline to review it in the interest of justice. In any event, the piece of paper recovered during the search constituted cumulative evidence of motive, and therefore, even if the item were subject to suppression, the error would be harmless beyond a reasonable doubt.

We perceive no abuse of discretion in sentencing. Concur— Ellerin, J. P., Wallach, Ross, Nardelli and Tom, JJ.

People v. Fung, 227 A.D.2d 173, 642 N.Y.S.2d 14, 1996 N.Y. App. Div. LEXIS 4822 (N.Y. Ct. App. 1996).

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Opinion

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