People v. James

2017 NY Slip Op 278, 146 A.D.3d 574, 46 N.Y.S.3d 539

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 17, 2017
• Docket: 2776
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Cassandra M. Mullen, J., at suppression hearing and nonjury trial; Wayne Ozzi, J., at sentencing), rendered November 29, 2010, convicting defendant of attempted criminal possession of a weapon in the fourth degree, and sentencing him to a term of one year of probation, unanimously affirmed.

Although the consolidated suppression hearing and nonjury trial, conducted over defendant’s objection, was contrary to CPL 710.40 (3), reversal is unwarranted. We find that defendant was not prejudiced as a result of the procedure (see People v Gonzalez, 214 AD2d 451 [1st Dept 1995], lv denied 86 NY2d 794 [1995]). In any event, the only relief defendant requests is dismissal of the accusatory instrument rather than a remand for further proceedings, and he expressly requests this Court to affirm his conviction if it does not grant a dismissal. Defendant has not shown that this case should be dismissed.

The court properly denied defendant’s suppression motion. There is no basis for disturbing the court’s credibility determi nations. The record supports the court’s finding that the search was based on valid consent (see generally People v Gonzalez, 39 NY2d 122, 128 [1976]). Among other things, the police advised the consenting party of her right to refuse consent, and she affirmatively requested the officers to remove any firearm that might be secreted in her apartment.

Concur — Acosta, J.P., Maz-zarelli, Manzanet-Daniels, Webber and Gesmer, JJ.