People v. Lopez

232 A.D.2d 222, 648 N.Y.S.2d 86, 1996 N.Y. App. Div. LEXIS 10089

Opinion

—Judgment, Supreme Court, New York County (Dorothy Cropper, J., at hearing; James Yates, J., át trial and sentence), rendered October 8, 1993, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third and fifth degrees, and sentencing him, as a second felony offender, to concurrent terms of 4V2 to 9 years and 2 to 4 years, respectively, unanimously affirmed.

Giving due deference to the jury’s findings of credibility, defendant’s guilt was proven beyond a reasonable doubt by overwhelming evidence (People v Bleakley, 69 NY2d 490, 495). Defendant’s claim that inconsistencies between the trial testimony of prosecution and defense witnesses warranted a reopening of the suppression hearing is without merit absent some "special or compelling” reason for his not having called his trial witnesses at the suppression hearing (People v Fuentes, 74 AD2d 753, 754, affd 53 NY2d 892; see, CPL 710.40 [4]). Defendant’s challenge to the court’s no adverse inference instruction is unpreserved (People v Autry, 75 NY2d 836), and we decline to review it in the interest of justice. Concur—Murphy, P. J., Sullivan, Rubin, Ross and Nardelli, JJ.