People v. Johnson

224 A.D.2d 718, 638 N.Y.S.2d 923, 1996 N.Y. App. Div. LEXIS 1985

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered June 21, 1994, convicting him of burglary in the third degree, criminal mischief in the third degree, and criminal trespass in the third degree, upon a jury verdict, and sentencing him to consecutive terms of imprisonment of 31/2 to 7 years for his conviction of burglary in the third degree and 60 days for his conviction of criminal trespass in the third degree and a term of imprisonment of 2 to 4 years for his conviction of criminal mischief to run concurrently with the sentence imposed on his conviction of burglary in the third degree. The appeal brings up for review the denial, after a hearing, of the branch of the defendant’s omnibus motion which was to suppress physical evidence.

Ordered that the judgment is modified, on the law, by directing that all of the defendant’s sentences shall run concurrently with each other; as so modified, the judgment is affirmed.

Contrary to defendant’s contention, the hearing court did not err by denying the branch of his omnibus motion which was to suppress the evidence recovered from his bag (see, People v Miner, 42 NY2d 937, 938; People v Butler, 203 AD2d 584; see also, People v Smith, 59 NY2d 454, 458-459; People v Prochilo, 41 NY2d 759).

We agree, however, with defendant’s contention that the court improperly imposed consecutive sentences for his convictions of burglary in the third degree and criminal trespass in the third degree in violation of Penal Law § 70.35 (see, People v Robinson, 195 AD2d 611). Thus, those sentences are modified to run concurrently with each other and with the sentence imposed on the defendant’s conviction of criminal mischief in the third degree.

The defendant’s remaining contentions are either unpreserved for appellate review (see, CPL 470.05 [2]) or without merit. Thompson, J. P., Joy, Hart and Florio, JJ., concur.