People v. Restrepo

295 A.D.2d 627, 744 N.Y.S.2d 868, 2002 N.Y. App. Div. LEXIS 6726

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 24, 2002
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Colabella, J.), rendered November 29, 1990, convicting him of kidnapping in the first degree (three counts), grand larceny in the second degree, assault in the second degree (four counts), and criminal possession of a weapon in the fourth degree (two counts), after a nonjury trial, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the defendant’s waiver of his right to a jury trial was made knowingly and voluntarily. With the defendant’s consent, the trial court properly conducted a combined pretrial suppression hearing and nonjury trial (see People v Moreno, 70 NY2d 403, 405-406; People v Montalvo, 263 AD2d 461, 462). The defense counsel’s consent to such a procedure did not deprive the defendant of the effective assistance of counsel (see People v Hanson, 256 AD2d 74). Further, counsel’s failure to file a notice of appeal, which resulted in the granting of the defendant’s federal habeas corpus petition (see Restrepo v Kelly, 178 F3d 634), and this belated appeal, does not provide any basis for a reversal of the defendant’s conviction.

The hearing court’s denial of that branch of the defendant’s omnibus motion which was to suppress identification testimony was amply supported by the record (see People v Jakins, 277 AD2d 328). O’Brien, J.P., H. Miller, Schmidt and Cozier, JJ., concur.