People v. Gessner

188 A.D.2d 1079, 592 N.Y.S.2d 1017, 1992 N.Y. App. Div. LEXIS 14970

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1992
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: We reject defendant’s contention that the suppression court erred in denying the motion to suppress his written statement. Defendant maintains that the statement was involuntarily made because it was obtained from him by means of threats and promises by the police (see, CPL 60.45 [1], [2] [a], [b] [i]). The police witnesses denied making any such threats or promises. Defendant’s contrary testimony merely presented a credibility question for the court to resolve. The court’s resolution of that issue in favor of the People is supported by the record and should not be disturbed (see, People v Parker, 158 AD2d 955, lv denied 75 NY2d 968; People v Woods, 141 AD2d 588, 589, lv denied 72 NY2d 1051; People v Vail, 90 AD2d 917).

Because defendant failed to controvert the allegations in the second felony offender statement at the time of sentencing, his contention that he was improperly sentenced as a second felony offender has not been preserved for appellate review (see, People v Smith, 73 NY2d 961, 962-963; People v Capers, 177 AD2d 992, 993, lv denied 79 NY2d 944; People v Davis, 135 AD2d 1088, 1089, lv denied 71 NY2d 1025). Moreover, we conclude that the sentence is neither harsh nor excessive. (Appeal from Judgment of Ontario County Court, Henry, Jr., J. — Robbery, 1st Degree.) Present — Callahan, J. P., Boomer, Green, Boehm and Davis, JJ.