Kesselman v. Lever House RestaurantKesselman v. Lever House Restaurant
With respect to Transcorp‘s obligations under its contract with the City relating to the sidewalk, Transcorp‘s witness, Mohammed Aftab, testified at an examination before trial that Transcorp was required to replace the sidewalk only at the conclusion of the renovation project. Although a copy of the contract was not submitted on the motion, Aftab‘s testimony was not contradicted by plaintiff; nor was it disputed that Transcorp had not completed the renovation project at the time of the accident. Accordingly, the contract cannot support the existence of a duty on Transcorp‘s part to maintain or repair the sidewalk. Similarly, the submissions on the motion established that the relevant portion of the sidewalk was in a broken and irregular condition before Transcorp began working at 1315 Morrison Avenue. In opposition to this showing, plaintiff offered nothing but speculation in support of her contention that equipment and materials moved across the sidewalk by Transcorp may have exacerbated the breaks and irregularities of the sidewalk.
Supreme Court, however, properly denied Transcorp‘s motion on the second of the three grounds. Although Transcorp was not responsible for causing the breaks and irregularities in the sidewalk, it did have a duty not to create an unsafe condition when it narrowed the sidewalk by erecting the plywood cover around the building, and to that extent it may have increased the risk that pedestrians might trip on the broken and uneven portion of the sidewalk (see Ryan v Gordon L. Hayes, Inc., 22 AD2d 985 [1964], affd 17 NY2d 765 [1966]; Hunter v City of New York, 23 AD3d 223 [2005]; Morris v Nacmias, 245 AD2d 432 [1997]). Triable issues of fact exist in this regard that preclude summary judgment dismissing this aspect of the complaint. Concur—Buckley, P.J., Tom, Sullivan, Nardelli and McGuire, JJ.
On October 31, 2003, plaintiff Arlene Kesselman, her husband and another couple, the Milsteins, were dining at defendant restaurant. Shortly after the main course, she and Mrs. Milstein proceeded to the restroom together, with Mrs. Milstein walking in front of this plaintiff. To get to the restroom, patrons had to walk down a large hallway. The hallway floor was dark, wide and shiny. Runners (carpets with rubber backing) had been placed on the floor but did not cover the entire width of it. The hallway was сrowded with waiters and restaurant staff, mostly moving in the opposite direction of plaintiff.
Shortly after reaching the very beginning of the hallway, plaintiff was forced to walk to her left, onto the bare floor, to avoid several waiters who were working at a station located on the right side of the hallway. As she stepped off the runner, she slipped on a wet substance on the floor and fell, sustaining injuries.
Plaintiffs thereafter commenced this action, alleging, inter alia, that Mrs. Kesselman fell and sustained injuries as a result of a dangerous and defective condition existing on defendant‘s premises.
After completion of discovery, defendant moved for summary judgment dismissing the complaint, claiming that the record did not establish it had either created, or had actual or constructive notice of, the injury-causing condition on its premises. Plaintiffs opposed the motion, arguing, inter alia, that the evidence permits an inference to be reasonably drawn that defendant‘s employees created the wet condition that caused plaintiff‘s fall. This, plaintiffs argued, creates triable issues of fact precluding the granting of summary judgment.
The IAS court found that plaintiffs failed to raise an issue of fact as to whether defendant created, or had actual or constructive notice of, the condition that caused Mrs. Kesselman to fall. The court granted defendant‘s motion for summary judgment and dismissed the complaint.
“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Where a defendant moves for
To establish negligence in this type of slip-and-fall case, a plaintiff must demonstrate, inter alia, that the defendant breached its duty to the plaintiff by either creating a dangerous condition or, because it had actual or constructive notice thereof, failing to remedy the situation (Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 250 [1984], affd 64 NY2d 670 [1984]). We need not address the issue of actual or constructive notice as defendant failed to establish, as a matter of law, that it did not create the wet condition which caused this plaintiff to slip and fall.
The evidence submitted by plaintiffs demonstrates that the hallway leading to the restaurant‘s restrooms was heavily utilized by waiters and other restaurant employees, as well as patrons utilizing the restroom. At the time of the incident, it was crowded with approximately 20 peoplе, many of whom were moving in the opposite direction. Most of these people were waiters although Mrs. Kesselman stated some could possibly have been patrons coming from the restroom. However, she did not recall seeing patrons in the hallway at that time. Water and hot beverage service was located in this hallway, as well as waiter stations. Significantly, Mrs. Kesselman had to alter her path to the restroom as a result of waiters using one of these stations. The food from the kitchen was hand-carried to the dining room through this hallway. A small sink used to fill pitchers with water and ice was located near the waiter stations. The pitchers would be provided to patrons only by defendant‘s staff.
The floor in the hallway was made of terrazzo, a material that becomes very slippery when wet. Defendant‘s manager testified at his deposition that since the hallway was heavily traveled, slippery material such as food and drinks might fall to the floor based on its intended use. As a result, runners were placed in the hallway for “added safety” to create a secure path to avoid a slick condition in the event of accidental spills. These runners, however, did not cover the entire width of the hallway and had gaps between them.
Mrs. Kesselman testified at her deposition that after she fell, she noticed the bottom and seat of her pants were wet, and that it was more than mere dampness. Although she could not testify
Given the fact that this hallway was a “center of activity for restaurant staff,” it is permissible to draw the inference that defendant‘s employees created the wet condition that caused Mrs. Kesselman to slip and fall (Deluna-Cole v Tonali, Inc., 303 AD2d 186, 187 [2003]), and thus it failed to demonstrate entitlement to summary judgment as a matter of law. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
BUCKLEY, P.J.
FRIEDMAN, NARDELLI, SWEENY AND MALONE, JJ.
With respect to Transcorp‘s obligations under its contract with the City relating to the sidewalk, Transcorp‘s witness, Mohammed Aftab, testified at an examination before trial that Transcorp was required to replace the sidewalk only at the conclusion of the renovation project. Although a copy of the contract was not submitted on the motion, Aftab‘s testimony was not contradicted by plaintiff; nor was it disputed that Transcorp had not completed the renovation project at the time of the accident. Accordingly, the contract cannot support the existence of a duty on Transcorp‘s part to maintain or repair the sidewalk. Similarly, the submissions on the motion established that the relevant portion of the sidewalk was in a broken and irregular condition before Transcorp began working at 1315 Morrison Avenue. In opposition to this showing, plaintiff offered nothing but speculation in support of her contention that equipment and materials moved across the sidewalk by Transcorp may have exacerbated the breaks and irregularities of the sidewalk.
Supreme Court, however, properly denied Transcorp‘s motion on the second of the three grounds. Although Transcorp was not responsible for causing the breaks and irregularities in the sidewalk, it did have a duty not to create an unsafe condition when it narrowed the sidewalk by erecting the plywood cover around the building, and to that extent it may have increased the risk that pedestrians might trip on the broken and uneven portion of the sidewalk (see Ryan v Gordon L. Hayes, Inc., 22 AD2d 985 [1964], affd 17 NY2d 765 [1966]; Hunter v City of New York, 23 AD3d 223 [2005]; Morris v Nacmias, 245 AD2d 432 [1997]). Triable issues of fact exist in this regard that preclude summary judgment dismissing this aspect of the complaint. Concur—Buckley, P.J., Tom, Sullivan, Nardelli and McGuire, JJ.
Order, Supreme Court, New York County (Edward H. Lehner, J.), entered October 24, 2005, which granted defendant‘s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied, the complaint reinstated and the matter remanded for further proceedings.
Shortly after reaching the very beginning of the hallway, plaintiff was forced to walk to her left, onto the bare floor, to avoid several waiters who were working at a station located on the right side of the hallway. As she stepped off the runner, she slipped on a wet substance on the floor and fell, sustaining injuries.
Plaintiffs thereafter commenced this action, alleging, inter alia, that Mrs. Kesselman fell and sustained injuries as a result of a dangerous and defective condition existing on defendant‘s premises.
After completion of discovery, defendant moved for summary judgment dismissing the complaint, claiming that the record did not establish it had either created, or had actual or constructive notice of, the injury-causing condition on its premises. Plaintiffs opposed the motion, arguing, inter alia, that the evidence permits an inference to be reasonably drawn that defendant‘s employees created the wet condition that caused plaintiff‘s fall. This, plaintiffs argued, creates triable issues of fact precluding the granting of summary judgment.
The IAS court found that plaintiffs failed to raise an issue of fact as to whether defendant created, or had actual or constructive notice of, the condition that caused Mrs. Kesselman to fall. The court granted defendant‘s motion for summary judgment and dismissed the complaint.
“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Where a defendant moves for
To establish negligence in this type of slip-and-fall case, a plaintiff must demonstrate, inter alia, that the defendant breached its duty to the plaintiff by either creating a dangerous condition or, because it had actual or constructive notice thereof, failing to remedy the situation (Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 250 [1984], affd 64 NY2d 670 [1984]). We need not address the issue of actual or constructive notice as defendant failed to establish, as a matter of law, that it did not create the wet condition which caused this plaintiff to slip and fall.
The evidence submitted by plaintiffs demonstrates that the hallway leading to the restaurant‘s restrooms was heavily utilized by waiters and other restaurant employees, as well as patrons utilizing the restroom. At the time of the incident, it was crowded with approximately 20 people, many of whom were moving in the opposite direction. Most of these people were waiters although Mrs. Kesselman stated some could possibly have been patrons coming from the restroom. However, she did not recall seeing patrons in the hallway at that time. Water and hot beverage service was located in this hallway, as well as waiter stations. Significantly, Mrs. Kesselman had to alter her path to the restroom as a result of waiters using one of these stations. The food from the kitchen was hand-carried to the dining room through this hallway. A small sink used to fill pitchers with water and ice was located near the waiter stations. The pitchers would be provided to patrons only by defendant‘s staff.
The floor in the hallway was made of terrazzo, a material that becomes very slippery when wet. Defendant‘s manager testified at his deposition that since the hallway was heavily traveled, slippery material such as food and drinks might fall to the floor based on its intended use. As a result, runners were placed in the hallway for “added safety” to create a secure path to avoid a slick condition in the event of accidental spills. These runners, however, did not cover the entire width of the hallway and had gaps between them.
Mrs. Kesselman testified at her deposition that after she fell, she noticed the bottom and seat of her pants were wet, and that it was more than mere dampness. Although she could not testify
Given the fact that this hallway was a “center of activity for restaurant staff,” it is permissible to draw the inference that defendant‘s employees created the wet condition that caused Mrs. Kesselman to slip and fall (Deluna-Cole v Tonali, Inc., 303 AD2d 186, 187 [2003]), and thus it failed to demonstrate entitlement to summary judgment as a matter of law. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered September 22, 2005, which granted the motion by defendants Port Authority and Koch Skanska for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Plaintiff‘s claims based on New York‘s Labor Law were properly dismissed as inapplicable since they are conduct-regulating, and New Jersey, where the accident occurred, has the greater interest in regulating behavior within its borders (see Padula v Lilarn Props. Corp., 84 NY2d 519, 522 [1994]; Florio v Fisher Dev., 309 AD2d 694, 696 [2003]; Webber v Mutual Life Ins. Co. of N.Y., 287 AD2d 369, 370 [2001]). Plaintiff has also failed to make out any claim of negligence under New York or New Jersey law. Indeed, the statements by his expert are entirely conclusory (see Ventura v Structural Concrete Corp., 227 AD2d 235 [1996]; Lynch v Galler Seven-Up Pre-Mix Corp., 74 NJ 146, 151, 376 A2d 1211, 1213 [1977] [insufficient proffer included expert‘s bald, conclusory assertions]; Smith v Keller Ladder Co., 275 NJ Super 280, 285, 645 A2d 1269, 1272 [1994] [directed verdict for defendant where plaintiff‘s expert testified in conclusory terms about defective ladder]), and completely un-
With respect to Transcorp‘s obligations under its contract with the City relating to the sidewalk, Transcorp‘s witness, Mohammed Aftab, testified at an examination before trial that Transcorp was required to replace the sidewalk only at the conclusion of the renovation project. Although a copy of the contract was not submitted on the motion, Aftab‘s testimony was not contradicted by plaintiff; nor was it disputed that Transcorp had not completed the renovation project at the time of the accident. Accordingly, the contract cannot support the existence of a duty on Transcorp‘s part to maintain or repair the sidewalk. Similarly, the submissions on the motion established that the relevant portion of the sidewalk was in a broken and irregular condition before Transcorp began working at 1315 Morrison Avenue. In opposition to this showing, plaintiff offered nothing but speculation in support of her contention that equipment and materials moved across the sidewalk by Transcorp may have exacerbated the breaks and irregularities of the sidewalk.
Supreme Court, however, properly denied Transcorp‘s motion on the second of the three grounds. Although Transcorp was not responsible for causing the breaks and irregularities in the sidewalk, it did have a duty not to create an unsafe condition when it narrowed the sidewalk by erecting the plywood cover around the building, and to that extent it may have increased the risk that pedestrians might trip on the broken and uneven portion of the sidewalk (see Ryan v Gordon L. Hayes, Inc., 22 AD2d 985 [1964], affd 17 NY2d 765 [1966]; Hunter v City of New York, 23 AD3d 223 [2005]; Morris v Nacmias, 245 AD2d 432 [1997]). Triable issues of fact exist in this regard that preclude summary judgment dismissing this aspect of the complaint. Concur—Buckley, P.J., Tom, Sullivan, Nardelli and McGuire, JJ.
Order, Supreme Court, New York County (Edward H. Lehner, J.), entered October 24, 2005, which granted defendant‘s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied, the complaint reinstated and the matter remanded for further proceedings.
Shortly after reaching the very beginning of the hallway, plaintiff was forced to walk to her left, onto the bare floor, to avoid several waiters who were working at a station located on the right side of the hallway. As she stepped off the runner, she slipped on a wet substance on the floor and fell, sustaining injuries.
Plaintiffs thereafter commencеd this action, alleging, inter alia, that Mrs. Kesselman fell and sustained injuries as a result of a dangerous and defective condition existing on defendant‘s premises.
After completion of discovery, defendant moved for summary judgment dismissing the complaint, claiming that the record did not establish it had either created, or had actual or constructive notice of, the injury-causing condition on its premises. Plaintiffs opposed the motion, arguing, inter alia, that the evidence permits an inference to be reasonably drawn that defendant‘s employees created the wet condition that caused plaintiff‘s fall. This, plaintiffs argued, creates triable issues of fact precluding the granting of summary judgment.
The IAS court found that plaintiffs failed to raise an issue of fact as to whether defendant created, or had actual or constructive notice of, the condition that caused Mrs. Kesselman to fall. The court granted defendant‘s motion for summary judgment and dismissed the complaint.
“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Where a defendant moves for
To establish negligence in this type of slip-and-fall case, a plaintiff must demonstrate, inter alia, that the defendant breached its duty to the plaintiff by either creating a dangerous condition or, because it had actual or constructive notice thereof, failing to remedy the situation (Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 250 [1984], affd 64 NY2d 670 [1984]). We need not address the issue of actual or constructive notice as defendant failed to establish, as a matter of law, that it did not create the wet condition which caused this plaintiff to slip and fall.
The evidence submitted by plaintiffs demonstrates that the hallway leading to the restaurant‘s restrooms was heavily utilized by waiters and other restaurant employees, as well as patrons utilizing the restroom. At the time of the incident, it was crowded with approximately 20 people, many of whom were moving in the opposite direction. Most of these people were waiters although Mrs. Kesselman stated some could possibly have been patrons coming from the restroom. However, she did not recall seeing patrons in the hallway at that time. Water and hot beverage service was located in this hallway, as well as waiter stations. Significantly, Mrs. Kesselman had to alter her path to the restroom as a result of waiters using one of these stations. The food from the kitchen was hand-carried to the dining room through this hallway. A small sink used to fill pitchers with water and ice was located near the waiter stations. The pitchers would be provided to patrons only by defendant‘s staff.
The floor in the hallway was made of terrazzo, a material that becomes very slippery when wet. Defendant‘s manager testified at his deposition that since the hallway was heavily traveled, slippery material such as food and drinks might fall to the floor based on its intended use. As a result, runners were placed in the hallway for “added safety” to create a secure path to avoid a slick condition in the event of accidental spills. These runners, however, did not cover the entire width of the hallway and had gaps between them.
Mrs. Kesselman testified at her deposition that after she fell, she noticed the bottom and seat of her pants were wet, and that it was more than mere dampness. Although she could not testify
Given the fact that this hallway was a “center of activity for restaurant staff,” it is permissible to draw the inference that defendant‘s employees created the wet condition that caused Mrs. Kesselman to slip and fall (Deluna-Cole v Tonali, Inc., 303 AD2d 186, 187 [2003]), and thus it failed to demonstrate entitlement to summary judgment as a matter of law. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered September 22, 2005, which granted the motion by defendants Port Authority and Koch Skanska for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Plaintiff‘s claims based on New York‘s Labor Law were properly dismissed as inapplicable since they are conduct-regulating, and New Jersey, where the accident occurred, has the greater interest in regulating behavior within its borders (see Padula v Lilarn Props. Corp., 84 NY2d 519, 522 [1994]; Florio v Fisher Dev., 309 AD2d 694, 696 [2003]; Webber v Mutual Life Ins. Co. of N.Y., 287 AD2d 369, 370 [2001]). Plaintiff has also failed to make out any claim of negligence under New York or New Jersey law. Indeed, the statements by his expert are entirely conclusory (see Ventura v Structural Concrete Corp., 227 AD2d 235 [1996]; Lynch v Galler Seven-Up Pre-Mix Corp., 74 NJ 146, 151, 376 A2d 1211, 1213 [1977] [insufficient proffer included expert‘s bald, conclusory assertions]; Smith v Keller Ladder Co., 275 NJ Super 280, 285, 645 A2d 1269, 1272 [1994] [directed verdict for defendant where plaintiff‘s expert testified in conclusory terms about defective ladder]), and completely un-
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order, Supreme Court, Brоnx County (Mary Ann Brigantti-Hughes, J.), entered on or about June 20, 2005, which, to the extent appealed from, granted defendant‘s motion for summary judgment dismissing plaintiff‘s claim for personal injuries resulting from an alleged assault, unanimously affirmed, without costs.
Defendant established its prima facie entitlement to summary judgment by submitting evidence that the locks on the front door of the building where plaintiff was allegedly assaulted were working properly on the date of the incident (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff‘s testimony that she found the front door of the building “wide open” on the day of the assault, without any evidence that the locks were broken, was insufficient to show that defendant breached its duty to provide minimal security (see Anis v Associated Univs., 277 AD2d 267 [2000]; Cisneros v 2001 Realty Co., 256 AD2d 299 [1998]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered October 2, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
The verdict was not against the weight of the evidence. There is no basis for disturbing the jury‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The undercover officer‘s reliable identification was corroborated by the recovery from defendant of a portion of the buy money.
The court properly denied defendant‘s request for a missing witness charge regarding the “ghost” officer, since defendant failed to establish that this officer was in a position to see anything relevant to the issues raised at trial (see People v Ortiz, 83 NY2d 989 [1994]; People v Dianda, 70 NY2d 894 [1987]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered January 10, 2005, convicting defendant, after a jury trial, of two counts of robbery in the first degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life, unanimously affirmed.
The court properly denied defendant‘s motion to suppress his statements and identification testimony. The police had probable cause to arrest defendant. The victim gave a detailed and accurate description of defendant, and within minutes of the crime the police saw defendant, who was the only person present in the area and who fit the description, about two blocks from the scene (see People v Ramos, 287 AD2d 305 [2001], lv denied 97 NY2d 658 [2001]). Moreover, defendant‘s conduct upon seeing the police, which consisted of turning around and walking in the opposite direction and then attempting to hide, further supported a finding of probable cаuse (see People v Brown, 24 AD3d 271 [2005], lv denied 6 NY3d 846 [2006]). The showup identification, conducted near the scene of the crime and shortly after its commission, was not unnecessarily suggestive (see People v Duuvon, 77 NY2d 541 [1991]).
The court properly exercised its discretion in denying defendant‘s request for a brief adjournment of the trial so that he could attempt to secure the attendance of a witness. Defendant did not establish that the witness could be located and would be available to testify within a reasonable time, or that her testimony would be material and not cumulative (see People v Foy, 32 NY2d 473, 476 [1973]). The witness, a friend of defendant, would have allegedly provided an explanation for defendant‘s presence in the area of the robbery, but that information would not have undermined the People‘s case. Since the witness‘s testimony would not have been exculpatory, defendant‘s constitutional right to present a defense was not violated (see Crane v Kentucky, 476 US 683, 689-690 [1986]).
Defendant‘s challenge to the court‘s Sandoval ruling is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court‘s ruling was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May 4, 2004, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.
The court properly denied defendant‘s motion to withdraw his guilty plea after giving him a full opportunity to be heard (see People v Frederick, 45 NY2d 520 [1978]). The record establishes that the plea was knowing, intelligent and voluntary. Defendant‘s claim that his counsel coerced him into pleading guilty by using “scare tactics” is unsupported by the record. Counsel properly advised defendant of his sentencing exposure, which was significantly greater than the sentence he received as a result of his plea.
We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order, Supreme Court, New York County (Kipp Thompson, J.), entered March 28, 2005, which, to the extent appealed from, denied defendant‘s cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Triable issues of fact exist as to whether defendant had constructive notice of the allegedly hazardous condition of the stairwell in which plaintiff fell (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). The evidence, viewed in the light most favorable to plaintiff, indicates that defendant‘s employees may have been aware of a recurring problem with debris in the stairwell, аnd that the stairwell may not have been cleaned regularly (see O‘Connor-Miele v Feliciano, 286 AD2d 602 [2001]; Simoni v 2095 Cruger Assoc., 285 AD2d 431 [2001]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered December 15, 2004, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, unanimously affirmed.
The court‘s Sandoval ruling was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). The court properly permitted the prosecutor to inquire into several of defendant‘s numerous convictions, as they were highly relevant to his credibility as a witness.
Defendant‘s challenge to the court‘s persistent felony offender adjudication is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court‘s adjudication was proper (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]). Defendant‘s sentence as a persistent felony offender was not based on any facts found by the court, but rather on his prior convictions (see People v Rivera, 5 NY3d 61 [2005], cert denied 546 US 984 [2005]).
We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 1, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court‘s fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim had a sufficient opportunity to observe appellant during the robbery and made a reliable identification. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Michael R. Ambrecht, J.), rendered March 16, 2005, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years, unanimously affirmed.
The court properly exercised its discretion in denying defendant‘s request for an adjournment to allow him to call a witness who had been hospitalized. Defendant failed to establish that the witness would be available to testify within a reasonable time, or that his testimony would be material (see People v Foy, 32 NY2d 473, 476 [1973]). The witness was allegedly a buyer of drugs from another person in the area, but there was no indication that he could have provided any testimony that would have undermined the People‘s case against defendant. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered June 29, 2004, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
The verdict was not against the weight of the evidence. There is no basis for disturbing the jury‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The undercover officer‘s reliable identification was corroborated by the recovery from defendant of the buy money.
The court properly denied defendant‘s request for a missing witness charge regarding the “ghost” officer, since defendant failed to establish that this officer was in a position to see anything relevant to the issues raised at trial (see People v Ortiz, 83 NY2d 989 [1994]; People v Dianda, 70 NY2d 894 [1987]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 1, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court‘s fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim had a sufficient opportunity to observe appellant during the robbery and made a reliable identification. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Michael R. Ambrecht, J.), rendered March 16, 2005, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years, unanimously affirmed.
The court properly exercised its discretion in denying defendant‘s request for an adjournment to allow him to call a witness who had been hospitalized. Defendant failed to establish that the witness would be available to testify within a reasonable time, or that his testimony would be material (see People v Foy, 32 NY2d 473, 476 [1973]). The witness was allegedly a buyer of drugs from another person in the area, but there was no indication that he could have provided any testimony that would have undermined the People‘s case against defendant. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered June 29, 2004, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
The verdict was not against the weight of the evidence. There is no basis for disturbing the jury‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The undercover officer‘s reliable identification was corroborated by the recovery from defendant of the buy money.
The court properly denied defendant‘s request for a missing witness charge regarding the “ghost” officer, since defendant failed to establish that this officer was in a position to see anything relevant to the issues raised at trial (see People v Ortiz, 83 NY2d 989 [1994]; People v Dianda, 70 NY2d 894 [1987]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 1, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court‘s fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim had a sufficient opportunity to observe appellant during the robbery and made a reliable identification. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered October 2, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
The verdict was not against the weight of the evidence. There is no basis for disturbing the jury‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The undercover officer‘s reliable identification was corroborated by the recovery from defendant of a portion of the buy money.
The court properly denied defendant‘s request for a missing witness charge regarding the “ghost” officer, since defendant failed to establish that this officer was in a position to see anything relevant to the issues raised at trial (see People v Ortiz, 83 NY2d 989 [1994]; People v Dianda, 70 NY2d 894 [1987]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order, Supreme Court, New York County (Kipp Thompson, J.), entered March 28, 2005, which, to the extent appealed from, denied defendant‘s cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Triable issues of fact exist as to whether defendant had constructive notice of the allegedly hazardous condition of the stairwell in which plaintiff fell (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). The evidence, viewed in the light most favorable to plaintiff, indicates that defendant‘s employees may have been aware of a recurring problem with debris in the stairwell, and that the stairwell may not have been cleaned regularly (see O‘Connor-Miele v Feliciano, 286 AD2d 602 [2001]; Simoni v 2095 Cruger Assoc., 285 AD2d 431 [2001]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 1, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court‘s fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim had a sufficient opportunity to observe appellant during the robbery and made a reliable identification. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May 4, 2004, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.
The court properly denied defendant‘s motion to withdraw his guilty plea after giving him a full opportunity tо be heard (see People v Frederick, 45 NY2d 520 [1978]). The record establishes that the plea was knowing, intelligent and voluntary. Defendant‘s claim that his counsel coerced him into pleading guilty by using “scare tactics” is unsupported by the record. Counsel properly advised defendant of his sentencing exposure, which was significantly greater than the sentence he received as a result of his plea.
We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about June 20, 2005, which, to the extent appealed from, granted defendant‘s motion for summary judgment dismissing plaintiff‘s claim for personal injuries resulting from an alleged assault, unanimously affirmed, without costs.
Defendant established its prima facie entitlement to summary judgment by submitting evidence that the locks on the front door of the building where plaintiff was allegedly assaulted were working properly on the date of the incident (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff‘s testimony that she found the front door of the building “wide open” on the day of the assault, without any evidence that the locks were broken, was insufficient to show that defendant breached its duty to provide minimal security (see Anis v Associated Univs., 277 AD2d 267 [2000]; Cisneros v 2001 Realty Co., 256 AD2d 299 [1998]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered December 15, 2004, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, unanimously affirmed.
The court‘s Sandoval ruling was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). The court properly permitted the prosecutor to inquire into several of defendant‘s numerous convictions, as they were highly relevant to his credibility as a witness.
Defendant‘s challenge to the court‘s persistent felony offender adjudication is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court‘s adjudication was proper (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]). Defendant‘s sentence as a persistent felony offender was not based on any facts found by the court, but rather on his prior convictions (see People v Rivera, 5 NY3d 61 [2005], cert denied 546 US 984 [2005]).
We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered January 10, 2005, convicting defendant, after a jury trial, of two counts of robbery in the first degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life, unanimously affirmed.
The сourt properly denied defendant‘s motion to suppress his statements and identification testimony. The police had probable cause to arrest defendant. The victim gave a detailed and accurate description of defendant, and within minutes of the crime the police saw defendant, who was the only person present in the area and who fit the description, about two blocks from the scene (see People v Ramos, 287 AD2d 305 [2001], lv denied 97 NY2d 658 [2001]). Moreover, defendant‘s conduct upon seeing the police, which consisted of turning around and walking in the opposite direction and then attempting to hide, further supported a finding of probable cause (see People v Brown, 24 AD3d 271 [2005], lv denied 6 NY3d 846 [2006]). The showup identification, conducted near the scene of the crime and shortly after its commission, was not unnecessarily suggestive (see People v Duuvon, 77 NY2d 541 [1991]).
The court properly exercised its discretion in denying defendant‘s request for a brief adjournment of the trial so that he could attempt to secure the attendance of a witness. Defendant did not establish that the witness could be located and would be available to testify within a reasonable time, or that her testimony would be material and not cumulative (see People v Foy, 32 NY2d 473, 476 [1973]). The witness, a friend of defendant, would have allegedly provided an explanation for defendant‘s presence in the area of the robbery, but that information would not have undermined the People‘s case. Since the witness‘s testimony would not have been exculpatory, defendant‘s constitutional right to present a defense was not violated (see Crane v Kentucky, 476 US 683, 689-690 [1986]).
Defendant‘s challenge to the court‘s Sandoval ruling is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court‘s ruling was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 1, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court‘s fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim had a sufficient opportunity to observe appellant during the robbery and made a reliable identification. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Michael R. Ambrecht, J.), rendered March 16, 2005, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years, unanimously affirmed.
The court properly exercised its discretion in denying defendant‘s request for an adjournment to allow him to call a witness who had been hospitalized. Defendant failed to establish that the witness would be available to testify within a reasonable time, or that his testimony would be material (see People v Foy, 32 NY2d 473, 476 [1973]). The witness was allegedly a buyer of drugs from another person in the area, but there was no indication that he could have provided any testimony that would have undermined the People‘s case against defendant. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered June 29, 2004, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
The verdict was not against the weight of the evidence. There is no basis for disturbing the jury‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The undercover officer‘s reliable identification was corroborated by the recovery from defendant of the buy money.
The court properly denied defendant‘s request for a missing witness charge regarding the “ghost” officer, since defendant failed to establish that this officer was in a position to see anything relevant to the issues raised at trial (see People v Ortiz, 83 NY2d 989 [1994]; People v Dianda, 70 NY2d 894 [1987]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 1, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court‘s fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim had a sufficient opportunity to observe appellant during the rоbbery and made a reliable identification. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May 4, 2004, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.
The court properly denied defendant‘s motion to withdraw his guilty plea after giving him a full opportunity to be heard (see People v Frederick, 45 NY2d 520 [1978]). The record establishes that the plea was knowing, intelligent and voluntary. Defendant‘s claim that his counsel coerced him into pleading guilty by using “scare tactics” is unsupported by the record. Counsel properly advised defendant of his sentencing exposure, which was significantly greater than the sentence he received as a result of his plea.
We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order, Supreme Court, New York County (Kipp Thompson, J.), entered March 28, 2005, which, to the extent appealed from, denied defendant‘s cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Triable issues of fact exist as to whether defendant had constructive notice of the allegedly hazardous condition of the stairwell in which plaintiff fell (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). The evidence, viewed in the light most favorable to plaintiff, indicates that defendant‘s employees may have been aware of a recurring problem with debris in the stairwell, and that the stairwell may not have been cleaned regularly (see O‘Connor-Miele v Feliciano, 286 AD2d 602 [2001]; Simoni v 2095 Cruger Assoc., 285 AD2d 431 [2001]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about June 20, 2005, which, to the extent appealed from, granted defendant‘s motion for summary judgment dismissing plaintiff‘s claim for personal injuries resulting from an alleged assault, unanimously affirmed, without costs.
Defendant established its prima facie entitlement to summary judgment by submitting evidence that the locks on the front door of the building where plaintiff was allegedly assaulted were working properly on the date of the incident (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff‘s testimony that she found the front door of the building “wide open” on the day of the assault, without any evidence that the locks were broken, was insufficient to show that defendant breached its duty to provide minimal security (see Anis v Associated Univs., 277 AD2d 267 [2000]; Cisneros v 2001 Realty Co., 256 AD2d 299 [1998]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered December 15, 2004, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, unanimously affirmed.
The court‘s Sandoval ruling was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). The court properly permitted the prosecutor to inquire into several of defendant‘s numerous convictions, as they were highly relevant to his credibility as a witness.
Defendant‘s challenge to the court‘s persistent felony offender adjudication is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court‘s adjudication was proper (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]). Defendant‘s sentence as a persistent felony offender was not based on any facts found by the court, but rather on his prior convictions (see People v Rivera, 5 NY3d 61 [2005], cert denied 546 US 984 [2005]).
We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 1, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court‘s fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim had a sufficient opportunity to observe appellant during the robbery and made a reliable identification. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered January 10, 2005, convicting defendant, after a jury trial, of two counts of robbery in the first degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life, unanimously affirmed.
The court properly denied defendant‘s motion to suppress his statements and identification testimony. The police had probable cause to arrest defendant. The victim gave a detailed and accurate description of defendant, and within minutes of the crime the police saw defendant, who was the only person present in the area and who fit the description, about two blocks from the scene (see People v Ramos, 287 AD2d 305 [2001], lv denied 97 NY2d 658 [2001]). Moreover, defendant‘s conduct upon seeing the police, which consisted of turning around and walking in the opposite direction and then attempting to hide, further supported a finding of probable cause (see People v Brown, 24 AD3d 271 [2005], lv denied 6 NY3d 846 [2006]). The showup identification, conducted near the scene of the crime and shortly after its commission, was not unnecessarily suggestive (see People v Duuvon, 77 NY2d 541 [1991]).
The court properly exercised its discretion in denying defendant‘s request for a brief adjournment of the trial so that he could attempt to secure the attendance of a witness. Defendant did not establish that the witness could be located and would be available to testify within a reasonable time, or that her testimony would be material and not cumulative (see People v Foy, 32 NY2d 473, 476 [1973]). The witness, a friend of defendant, would have allegedly provided an explanation for defendant‘s presence in the area of the robbery, but that information would not have undermined the People‘s case. Since the witness‘s testimony would not have been exculpatory, defendant‘s constitutional right to present a defense was not violated (see Crane v Kentucky, 476 US 683, 689-690 [1986]).
Defendant‘s challenge to the court‘s Sandoval ruling is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court‘s ruling was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Michael R. Ambrecht, J.), rendered March 16, 2005, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years, unanimously affirmed.
The court properly exercised its discretion in denying defendant‘s request for an adjournment to allow him to call a witness who had been hospitalized. Defendant failed to establish that the witness would be available to testify within a reasonable time, or that his testimony would be material (see People v Foy, 32 NY2d 473, 476 [1973]). The witness was allegedly a buyer of drugs from another person in the area, but there was no indication that he could have provided any testimony that would have undermined the People‘s case against defendant. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered June 29, 2004, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
The verdict was not against the weight of the evidence. There is no basis for disturbing the jury‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The undercover officer‘s reliable identification was corroborated by the recovery from defendant of the buy money.
The court properly denied defendant‘s request for a missing witness charge regarding the “ghost” officer, since defendant failed to establish that this officer was in a position to see anything relevant to the issues raised at trial (see People v Ortiz, 83 NY2d 989 [1994]; People v Dianda, 70 NY2d 894 [1987]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered October 2, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
The verdict was not against the weight of the evidence. There is no basis for disturbing the jury‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The undercover officer‘s reliable identification was corroborated by the recovery from defendant of a portion of the buy money.
The court properly denied defendant‘s request for a missing witness charge regarding the “ghost” officer, since defendant failed to establish that this officer was in a position to see anything relevant to the issues raised at trial (see People v Ortiz, 83 NY2d 989 [1994]; People v Dianda, 70 NY2d 894 [1987]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 1, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court‘s fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim had a sufficient opportunity to observe appellant during the robbery and made a reliable identification. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered December 15, 2004, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, unanimously affirmed.
The court‘s Sandoval ruling was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). The court properly permitted the prosecutor to inquire into several of defendant‘s numerous convictions, as they were highly relevant to his credibility as a witness.
Defendant‘s challenge to the court‘s persistent felony offender adjudication is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court‘s adjudication was proper (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]). Defendant‘s sentence as a persistent felony offender was not based on any facts found by the court, but rather on his prior convictions (see People v Rivera, 5 NY3d 61 [2005], cert denied 546 US 984 [2005]).
We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order, Supreme Court, New York County (Kipp Thompson, J.), entered March 28, 2005, which, to the extent appealed from, denied defendant‘s cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Triable issues of fact exist as to whether defendant had constructive notice of the allegedly hazardous condition of the stairwell in which plaintiff fell (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). The evidence, viewed in the light most favorable to plaintiff, indicates that defendant‘s employees may have been aware of a recurring problem with debris in the stairwell, and that the stairwell may not have been cleaned regularly (see O‘Connor-Miele v Feliciano, 286 AD2d 602 [2001]; Simoni v 2095 Cruger Assoc., 285 AD2d 431 [2001]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May 4, 2004, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.
The court properly denied defendant‘s motion to withdraw his guilty plea after giving him a full opportunity to be heard (see People v Frederick, 45 NY2d 520 [1978]). The record establishes that the plea was knowing, intelligent and voluntary. Defendant‘s claim that his counsel coerced him into pleading guilty by using “scare tactics” is unsupported by the record. Counsel properly advised defendant of his sentencing exposure, which was significantly greater than the sentence he received as a result of his plea.
We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about June 20, 2005, which, to the extent appealed from, granted defendant‘s motion for summary judgment dismissing plaintiff‘s claim for personal injuries resulting from an alleged assault, unanimously affirmed, without costs.
Defendant established its prima facie entitlement to summary judgment by submitting evidence that the locks on the front door of the building where plaintiff was allegedly assaulted were working properly on the date of the incident (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff‘s testimony that she found the front door of the building “wide open” on the day of the assault, without any evidence that the locks were broken, was insufficient to show that defendant breached its duty to provide minimal security (see Anis v Associated Univs., 277 AD2d 267 [2000]; Cisneros v 2001 Realty Co., 256 AD2d 299 [1998]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 1, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court‘s fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim had a sufficient opportunity to observe appellant during the robbery and made a reliable identification. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered December 15, 2004, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, unanimously affirmed.
The court‘s Sandoval ruling was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). The court properly permitted the prosecutor to inquire into several of defendant‘s numerous convictions, as they were highly relevant to his credibility as a witness.
Defendant‘s challenge to the court‘s persistent felony offender adjudication is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court‘s adjudication was proper (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]). Defendant‘s sentence as a persistent felony offender was not based on any facts found by the court, but rather on his prior convictions (see People v Rivera, 5 NY3d 61 [2005], cert denied 546 US 984 [2005]).
We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 1, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding detеrmination that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court‘s fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim had a sufficient opportunity to observe appellant during the robbery and made a reliable identification. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered January 10, 2005, convicting defendant, after a jury trial, of two counts of robbery in the first degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life, unanimously affirmed.
The court properly denied defendant‘s motion to suppress his statements and identification testimony. The police had probable cause to arrest defendant. The victim gave a detailed and accurate description of defendant, and within minutes of the crime the police saw defendant, who was the only person present in the area and who fit the description, about two blocks from the scene (see People v Ramos, 287 AD2d 305 [2001], lv denied 97 NY2d 658 [2001]). Moreover, defendant‘s conduct upon seeing the police, which consisted of turning around and walking in the opposite direction and then attempting to hide, further supported a finding of probable cause (see People v Brown, 24 AD3d 271 [2005], lv denied 6 NY3d 846 [2006]). The showup identification, conducted near the scene of the crime and shortly after its commission, was not unnecessarily suggestive (see People v Duuvon, 77 NY2d 541 [1991]).
The court properly exercised its discretion in denying defendant‘s request for a brief adjournment of the trial so that he could attempt to secure the attendance of a witness. Defendant did not establish that the witness could be located and would be available to testify within a reasonable time, or that her testimony would be material and not cumulative (see People v Foy, 32 NY2d 473, 476 [1973]). The witness, a friend of defendant, would have allegedly provided an explanation for defendant‘s presence in the area of the robbery, but that information would not have undermined the People‘s case. Since the witness‘s testimony would not have been exculpatory, defendant‘s constitutional right to present a defense was not violated (see Crane v Kentucky, 476 US 683, 689-690 [1986]).
Defendant‘s challenge to the court‘s Sandoval ruling is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court‘s ruling was a proper exеrcise of discretion (see People v Hayes, 97 NY2d 203 [2002]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Michael R. Ambrecht, J.), rendered March 16, 2005, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years, unanimously affirmed.
The court properly exercised its discretion in denying defendant‘s request for an adjournment to allow him to call a witness who had been hospitalized. Defendant failed to establish that the witness would be available to testify within a reasonable time, or that his testimony would be material (see People v Foy, 32 NY2d 473, 476 [1973]). The witness was allegedly a buyer of drugs from another person in the area, but there was no indication that he could have provided any testimony that would have undermined the People‘s case against defendant. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered June 29, 2004, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
The verdict was not against the weight of the evidence. There is no basis for disturbing the jury‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The undercover officer‘s reliable identification was corroborated by the recovery from defendant of the buy money.
The court properly denied defendant‘s request for a missing witness charge regarding the “ghost” officer, since defendant failed to establish that this officer was in a position to see anything relevant to the issues raised at trial (see People v Ortiz, 83 NY2d 989 [1994]; People v Dianda, 70 NY2d 894 [1987]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered October 2, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
The verdict was not against the weight of the evidence. There is no basis for disturbing the jury‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The undercover officer‘s reliable identification was corroborated by the recovery from defendant of a portion of the buy money.
The court properly denied defendant‘s request for a missing witness charge regarding the “ghost” officer, since defendant failed to establish that this officer was in a position to see anything relevant to the issues raised at trial (see People v Ortiz, 83 NY2d 989 [1994]; People v Dianda, 70 NY2d 894 [1987]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 1, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court‘s fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim had a sufficient opportunity to observe appellant during the robbery and made a reliable identification. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered December 15, 2004, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, unanimously affirmed.
The court‘s Sandoval ruling was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). The court properly permitted the prosecutor to inquire into several of defendant‘s numerous convictions, as they were highly relevant to his credibility as a witness.
Defendant‘s challenge to the court‘s persistent felony offender adjudication is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court‘s adjudication was proper (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]). Defendant‘s sentence as a persistent felony offender was not based on any facts found by the court, but rather on his prior convictions (see People v Rivera, 5 NY3d 61 [2005], cert denied 546 US 984 [2005]).
We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order, Supreme Court, New York County (Kipp Thompson, J.), entered March 28, 2005, which, to the extent appealed from, denied defendant‘s cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Triable issues of fact exist as to whether defendant had constructive notice of the allegedly hazardous condition of the stairwell in which plaintiff fell (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). The evidence, viewed in the light most favorable to plaintiff, indicates that defendant‘s employees may have been aware of a recurring problem with debris in the stairwell, and that the stairwell may not have been cleaned regularly (see O‘Connor-Miele v Feliciano, 286 AD2d 602 [2001]; Simoni v 2095 Cruger Assoc., 285 AD2d 431 [2001]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May 4, 2004, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.
The court properly denied defendant‘s motion to withdraw his guilty plea after giving him a full opportunity to be heard (see People v Frederick, 45 NY2d 520 [1978]). The record establishes that the plea was knowing, intelligent and voluntary. Defendant‘s claim that his counsel coerced him into pleading guilty by using “scare tactics” is unsupported by the record. Counsel properly advised defendant of his sentencing exposure, which was significantly greater than the sentence he received as a result of his plea.
We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about June 20, 2005, which, to the extent appealed from, granted defendant‘s motion for summary judgment dismissing plaintiff‘s claim for personal injuries resulting from an alleged assault, unanimously affirmed, without costs.
Defendant established its prima facie entitlement to summary judgment by submitting evidence that the locks on the front door of the building where plaintiff was allegedly assaulted were working properly on the date of the incident (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff‘s testimony that she found the front door of the building “wide open” on the day of the assault, without any evidence that the locks were broken, was insufficient to show that defendant breached its duty to provide minimal security (see Anis v Associated Univs., 277 AD2d 267 [2000]; Cisneros v 2001 Realty Co., 256 AD2d 299 [1998]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 1, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court‘s fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis fоr disturbing the court‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim had a sufficient opportunity to observe appellant during the robbery and made a reliable identification. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered January 10, 2005, convicting defendant, after a jury trial, of two counts of robbery in the first degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life, unanimously affirmed.
The court properly denied defendant‘s motion to suppress his statements and identification testimony. The police had probable cause to arrest defendant. The victim gave a detailed and accurate description of defendant, and within minutes of the crime the police saw defendant, who was the only person present in the area and who fit the description, about two blocks from the scene (see People v Ramos, 287 AD2d 305 [2001], lv denied 97 NY2d 658 [2001]). Moreover, defendant‘s conduct upon seeing the police, which consisted of turning around and walking in the opposite direction and then attempting to hide, further supported a finding of probable cause (see People v Brown, 24 AD3d 271 [2005], lv denied 6 NY3d 846 [2006]). The showup identification, conducted near the scene of the crime and shortly after its commission, was not unnecessarily suggestive (see People v Duuvon, 77 NY2d 541 [1991]).
The court properly exercised its discretion in denying defendant‘s request for a brief adjournment of the trial so that he could attempt to secure the attendance of a witness. Defendant did not establish that the witness could be located and would be available to testify within a reasonable time, or that her testimony would be material and not cumulative (see People v Foy, 32 NY2d 473, 476 [1973]). The witness, a friend of defendant, would have allegedly provided an explanation for defendant‘s presence in the area of the robbery, but that information would not have undermined the People‘s case. Since the witness‘s testimony would not have been exculpatory, defendant‘s constitutional right to present a defense was not violated (see Crane v Kentucky, 476 US 683, 689-690 [1986]).
Defendant‘s challenge to the court‘s Sandoval ruling is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court‘s ruling was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered December 15, 2004, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, unanimously affirmed.
The court‘s Sandoval ruling was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). The court properly permitted the prosecutor to inquire into several of defendant‘s numerous convictions, as they were highly relevant to his credibility as a witness.
Defendant‘s challenge to the court‘s persistent felony offender adjudication is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court‘s adjudication was proper (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]). Defendant‘s sentence as a persistent felony offender was not based on any facts found by the court, but rather on his prior convictions (see People v Rivera, 5 NY3d 61 [2005], cert denied 546 US 984 [2005]).
We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order, Supreme Court, New York County (Kipp Thompson, J.), entered March 28, 2005, which, to the extent appealed from, denied defendant‘s cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Triable issues of fact exist as to whether defendant had constructive notice of the allegedly hazardous condition of the stairwell in which plaintiff fell (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). The evidence, viewed in the light most favorable to plaintiff, indicates that defendant‘s employees may have been aware of a recurring problem with debris in the stairwell, and that the stairwell may not have been cleaned regularly (see O‘Connor-Miele v Feliciano, 286 AD2d 602 [2001]; Simoni v 2095 Cruger Assoc., 285 AD2d 431 [2001]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May 4, 2004, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.
The court properly denied defendant‘s motion to withdraw his guilty plea after giving him a full opportunity to be heard (see People v Frederick, 45 NY2d 520 [1978]). The record establishes that the plea was knowing, intelligent and voluntary. Defendant‘s claim that his counsel coerced him into pleading guilty by using “scare tactics” is unsupported by the record. Counsel properly advised defendant of his sentencing exposure, which was significantly greater than the sentence he received as a result of his plea.
We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about June 20, 2005, which, to the extent appealed from, granted defendant‘s motion for summary judgment dismissing plaintiff‘s claim for personal injuries resulting from an alleged assault, unanimously affirmed, without costs.
Defendant established its prima facie entitlement to summary judgment by submitting evidence that the locks on the front door of the building where plaintiff was allegedly assaulted were working properly on the date of the incident (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff‘s testimony that she found the front door of the building “wide open” on the day of the assault, without any evidence that the locks were broken, was insufficient to show that defendant breached its duty to provide minimal security (see Anis v Associated Univs., 277 AD2d 267 [2000]; Cisneros v 2001 Realty Co., 256 AD2d 299 [1998]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 1, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court‘s fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim had a sufficient opportunity to observe appellant during the robbery and made a reliable identification. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered January 10, 2005, convicting defendant, after a jury trial, of two counts of robbery in the first degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life, unanimously affirmed.
The court properly denied defendant‘s motion to suppress his statements and identification testimony. The police had probable cause to arrest defendant. The victim gave a detailed and accurate description of defendant, and within minutes of the crime the police saw defendant, who was the only person present in the area and who fit the description, about two blocks from the scene (see People v Ramos, 287 AD2d 305 [2001], lv denied 97 NY2d 658 [2001]). Moreover, defendant‘s conduct upon seeing the police, which consisted of turning around and walking in the opposite direction and then attempting to hide, further supported a finding of probable cause (see People v Brown, 24 AD3d 271 [2005], lv denied 6 NY3d 846 [2006]). The showup identification, conducted near the scene of the crime and shortly after its commission, was not unnecessarily suggestive (see People v Duuvon, 77 NY2d 541 [1991]).
The court properly exercised its discretion in denying defendant‘s request for a brief adjournment of the trial so that he could attempt to secure the attendance of a witness. Defendant did not establish that the witness could be located and would be available to testify within a reasonable time, or that her testimony would be material and not cumulative (see People v Foy, 32 NY2d 473, 476 [1973]). The witness, a friend of defendant, would have allegedly provided an explanation for defendant‘s presence in the area of the robbery, but that information would not have undermined the People‘s case. Since the witness‘s testimony would not have been exculpatory, defendant‘s constitutional right to present a defense was not violated (see Crane v Kentucky, 476 US 683, 689-690 [1986]).
Defendant‘s challenge to the court‘s Sandoval ruling is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court‘s ruling was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Michael R. Ambrecht, J.), rendered March 16, 2005, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years, unanimously affirmed.
The court properly exercised its discretion in denying defendant‘s request for an adjournment to allow him to call a witness who had been hospitalized. Defendant failed to establish that the witness would be available to testify within a reasonable time, or that his testimony would be material (see People v Foy, 32 NY2d 473, 476 [1973]). The witness was allegedly a buyer of drugs from another person in the area, but there was no indication that he could have provided any testimony that would have undermined the People‘s case against defendant. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered June 29, 2004, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
The verdict was not against the weight of the evidence. There is no basis for disturbing the jury‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The undercover officer‘s reliable identification was corroborated by the recovery from defendant of the buy money.
The court properly denied defendant‘s request for a missing witness charge regarding the “ghost” officer, since defendant failed to establish that this officer was in a position to see anything relevant to the issues raised at trial (see People v Ortiz, 83 NY2d 989 [1994]; People v Dianda, 70 NY2d 894 [1987]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered October 2, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
The verdict was not against the weight of the evidence. There is no basis for disturbing the jury‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The undercover officer‘s reliable identification was corroborated by the recovery from defendant of a portion of the buy money.
The court properly denied defendant‘s request for a missing witness charge regarding the “ghost” officer, since defendant failed to establish that this officer was in a position to see anything relevant to the issues raised at trial (see People v Ortiz, 83 NY2d 989 [1994]; People v Dianda, 70 NY2d 894 [1987]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 1, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court‘s fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim had a sufficient opportunity to observe appellant during the robbery and made a reliable identification. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered December 15, 2004, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, unanimously affirmed.
The court‘s Sandoval ruling was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). The court properly permitted the prosecutor to inquire into several of defendant‘s numerous convictions, as they were highly relevant to his credibility as a witness.
Defendant‘s challenge to the court‘s persistent felony offender adjudication is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court‘s adjudication was proper (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]). Defendant‘s sentence as a persistent felony offender wаs not based on any facts found by the court, but rather on his prior convictions (see People v Rivera, 5 NY3d 61 [2005], cert denied 546 US 984 [2005]).
We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order, Supreme Court, New York County (Kipp Thompson, J.), entered March 28, 2005, which, to the extent appealed from, denied defendant‘s cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Triable issues of fact exist as to whether defendant had constructive notice of the allegedly hazardous condition of the stairwell in which plaintiff fell (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). The evidence, viewed in the light most favorable to plaintiff, indicates that defendant‘s employees may have been aware of a recurring problem with debris in the stairwell, and that the stairwell may not have been cleaned regularly (see O‘Connor-Miele v Feliciano, 286 AD2d 602 [2001]; Simoni v 2095 Cruger Assoc., 285 AD2d 431 [2001]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May 4, 2004, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.
The court properly denied defendant‘s motion to withdraw his guilty plea after giving him a full opportunity to be heard (see People v Frederick, 45 NY2d 520 [1978]). The record establishes that the plea was knowing, intelligent and voluntary. Defendant‘s claim that his counsel coerced him into pleading guilty by using “scare tactics” is unsupported by the record. Counsel properly advised defendant of his sentencing exposure, which was significantly greater than the sentence he received as a result of his plea.
We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about June 20, 2005, which, to the extent appealed from, granted defendant‘s motion for summary judgment dismissing plaintiff‘s claim for personal injuries resulting from an alleged assault, unanimously affirmed, without costs.
Defendant established its prima facie entitlement to summary judgment by submitting evidence that the locks on the front door of the building where plaintiff was allegedly assaulted were working properly on the date of the incident (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff‘s testimony that she found the front door of the building “wide open” on the day of the assault, without any evidence that the locks were broken, was insufficient to show that defendant breached its duty tо provide minimal security (see Anis v Associated Univs., 277 AD2d 267 [2000]; Cisneros v 2001 Realty Co., 256 AD2d 299 [1998]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 1, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court‘s fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim had a sufficient opportunity to observe appellant during the robbery and made a reliable identification. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered January 10, 2005, convicting defendant, after a jury trial, of two counts of robbery in the first degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life, unanimously affirmed.
The court properly denied defendant‘s motion to suppress his statements and identification testimony. The police had probable cause to arrest defendant. The victim gave a detailed and accurate description of defendant, and within minutes of the crime the police saw defendant, who was the only person present in the area and who fit the description, about two blocks from the scene (see People v Ramos, 287 AD2d 305 [2001], lv denied 97 NY2d 658 [2001]). Moreover, defendant‘s conduct upon seeing the police, which consisted of turning around and walking in the opposite direction and then attempting to hide, further supported a finding of probable cause (see People v Brown, 24 AD3d 271 [2005], lv denied 6 NY3d 846 [2006]). The showup identification, conducted near the scene of the crime and shortly after its commission, was not unnecessarily suggestive (see People v Duuvon, 77 NY2d 541 [1991]).
The court properly exercised its discretion in denying defendant‘s request for a brief adjournment of the trial so that he could attempt to secure the attendance of a witness. Defendant did not establish that the witness could be located and would be available to testify within a reasonable time, or that her testimony would be material and not cumulative (see People v Foy, 32 NY2d 473, 476 [1973]). The witness, a friend of defendant, would have allegedly provided an explanation for defendant‘s presence in the area of the robbery, but that information would not have undermined the People‘s case. Since the witness‘s testimony would not have been exculpatory, defendant‘s constitutional right to present a defense was not violated (see Crane v Kentucky, 476 US 683, 689-690 [1986]).
Defendant‘s challenge to the court‘s Sandoval ruling is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court‘s ruling was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Michael R. Ambrecht, J.), rendered March 16, 2005, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years, unanimously affirmed.
The court properly exercised its discretion in denying defendant‘s request for an adjournment to allow him to call a witness who had been hospitalized. Defendant failed to establish that the witness would be available to testify within a reasonable time, or that his testimony would be material (see People v Foy, 32 NY2d 473, 476 [1973]). The witness was allegedly a buyer of drugs from another person in the area, but there was no indication that he could have provided any testimony that would have undermined the People‘s case against defendant. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered June 29, 2004, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
The verdict was not against the weight of the evidence. There is no basis for disturbing the jury‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The undercover officer‘s reliable identification was corroborated by the recovery from defendant of the buy money.
The court properly denied defendant‘s request for a missing witness charge regarding the “ghost” officer, since defendant failed to establish that this officer was in a position to see anything relevant to the issues raised at trial (see People v Ortiz, 83 NY2d 989 [1994]; People v Dianda, 70 NY2d 894 [1987]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered October 2, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
The verdict was not against the weight of the evidence. There is no basis for disturbing the jury‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The undercover officer‘s reliable identification was corroborated by the recovery from defendant of a portion of the buy money.
The court properly denied defendant‘s request for a missing witness charge regarding the “ghost” officer, since defendant failed to establish that this officer was in a position to see anything relevant to the issues raised at trial (see People v Ortiz, 83 NY2d 989 [1994]; People v Dianda, 70 NY2d 894 [1987]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 1, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court‘s fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim had a sufficient opportunity to observe appellant during the robbery and made a reliable identification. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered December 15, 2004, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, unanimously affirmed.
The court‘s Sandoval ruling was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). The court properly permitted the prosecutor to inquire into several of defendant‘s numerous convictions, as they were highly relevant to his credibility as a witness.
Defendant‘s challenge to the court‘s persistent felony offender adjudication is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court‘s adjudication was proper (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]). Defendant‘s sentence as a persistent felony offender was not based on any facts found by the court, but rather on his prior convictions (see People v Rivera, 5 NY3d 61 [2005], cert denied 546 US 984 [2005]).
We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order, Supreme Court, New York County (Kipp Thompson, J.), entered March 28, 2005, which, to the extent appealed from, denied defendant‘s cross motion for summary judgment dismissing the complaint, unanimously аffirmed, without costs.
Triable issues of fact exist as to whether defendant had constructive notice of the allegedly hazardous condition of the stairwell in which plaintiff fell (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). The evidence, viewed in the light most favorable to plaintiff, indicates that defendant‘s employees may have been aware of a recurring problem with debris in the stairwell, and that the stairwell may not have been cleaned regularly (see O‘Connor-Miele v Feliciano, 286 AD2d 602 [2001]; Simoni v 2095 Cruger Assoc., 285 AD2d 431 [2001]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May 4, 2004, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.
The court properly denied defendant‘s motion to withdraw his guilty plea after giving him a full opportunity to be heard (see People v Frederick, 45 NY2d 520 [1978]). The record establishes that the plea was knowing, intelligent and voluntary. Defendant‘s claim that his counsel coerced him into pleading guilty by using “scare tactics” is unsupported by the record. Counsel properly advised defendant of his sentencing exposure, which was significantly greater than the sentence he received as a result of his plea.
We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about June 20, 2005, which, to the extent appealed from, granted defendant‘s motion for summary judgment dismissing plaintiff‘s claim for personal injuries resulting from an alleged assault, unanimously affirmed, without costs.
Defendant established its prima facie entitlement to summary judgment by submitting evidence that the locks on the front door of the building where plaintiff was allegedly assaulted were working properly on the date of the incident (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff‘s testimony that she found the front door of the building “wide open” on the day of the assault, without any evidence that the locks were broken, was insufficient to show that defendant breached its duty to provide minimal security (see Anis v Associated Univs., 277 AD2d 267 [2000]; Cisneros v 2001 Realty Co., 256 AD2d 299 [1998]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 1, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand lаrceny in the fourth degree and criminal possession of stolen property in the fifth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court‘s fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim had a sufficient opportunity to observe appellant during the robbery and made a reliable identification. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered January 10, 2005, convicting defendant, after a jury trial, of two counts of robbery in the first degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life, unanimously affirmed.
The court properly denied defendant‘s motion to suppress his statements and identification testimony. The police had probable cause to arrest defendant. The victim gave a detailed and accurate description of defendant, and within minutes of the crime the police saw defendant, who was the only person present in the area and who fit the description, about two blocks from the scene (see People v Ramos, 287 AD2d 305 [2001], lv denied 97 NY2d 658 [2001]). Moreover, defendant‘s conduct upon seeing the police, which consisted of turning around and walking in the opposite direction and then attempting to hide, further supported a finding of probable cause (see People v Brown, 24 AD3d 271 [2005], lv denied 6 NY3d 846 [2006]). The showup identification, conducted near the scene of the crime and shortly after its commission, was not unnecessarily suggestive (see People v Duuvon, 77 NY2d 541 [1991]).
The court properly exercised its discretion in denying defendant‘s request for a brief adjournment of the trial so that he could attempt to secure the attendance of a witness. Defendant did not establish that the witness could be located and would be available to testify within a reasonable time, or that her testimony would be material and not cumulative (see People v Foy, 32 NY2d 473, 476 [1973]). The witness, a friend of defendant, would have allegedly provided an explanation for defendant‘s presence in the area of the robbery, but that information would not have undermined the People‘s case. Since the witness‘s testimony would not have been exculpatory, defendant‘s constitutional right to present a defense was not violated (see Crane v Kentucky, 476 US 683, 689-690 [1986]).
Defendant‘s challenge to the court‘s Sandoval ruling is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court‘s ruling was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Michael R. Ambrecht, J.), rendered March 16, 2005, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years, unanimously affirmed.
The court properly exercised its discretion in denying defendant‘s request for an adjournment to allow him to call a witness who had been hospitalized. Defendant failed to establish that the witness would be available to testify within a reasonable time, or that his testimony would be material (see People v Foy, 32 NY2d 473, 476 [1973]). The witness was allegedly a buyer of drugs from another person in the area, but there was no indication that he could have provided any testimony that would have undermined the People‘s case against defendant. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered June 29, 2004, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
The verdict was not against the weight of the evidence. There is no basis for disturbing the jury‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The undercover officer‘s reliable identification was corroborated by the recovery from defendant of the buy money.
The court properly denied defendant‘s request for a missing witness charge regarding the “ghost” officer, since defendant failed to establish that this officer was in a position to see anything relevant to the issues raised at trial (see People v Ortiz, 83 NY2d 989 [1994]; People v Dianda, 70 NY2d 894 [1987]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered October 2, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
The verdict was not against the weight of the evidence. There is no basis for disturbing the jury‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The undercover officer‘s reliable identification was corroborated by the recovery from defendant of a portion of the buy money.
The court properly denied defendant‘s request for a missing witness charge regarding the “ghost” officer, since defendant failed to establish that this officer was in a position to see anything relеvant to the issues raised at trial (see People v Ortiz, 83 NY2d 989 [1994]; People v Dianda, 70 NY2d 894 [1987]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 1, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court‘s fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim had a sufficient opportunity to observe appellant during the robbery and made a reliable identification. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered December 15, 2004, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, unanimously affirmed.
The court‘s Sandoval ruling was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). The court properly permitted the prosecutor to inquire into several of defendant‘s numerous convictions, as they were highly relevant to his credibility as a witness.
Defendant‘s challenge to the court‘s persistent felony offender adjudication is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court‘s adjudication was proper (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]). Defendant‘s sentence as a persistent felony offender was not based on any facts found by the court, but rather on his prior convictions (see People v Rivera, 5 NY3d 61 [2005], cert denied 546 US 984 [2005]).
We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order, Supreme Court, New York County (Kipp Thompson, J.), entered March 28, 2005, which, to the extent appealed from, denied defendant‘s cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Triable issues of fact exist as to whether defendant had constructive notice of the allegedly hazardous condition of the stairwell in which plaintiff fell (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). The evidence, viewed in the light most favorable to plaintiff, indicates that defendant‘s employees may have been aware of a recurring problem with debris in the stairwell, and that the stairwell may not have been clеaned regularly (see O‘Connor-Miele v Feliciano, 286 AD2d 602 [2001]; Simoni v 2095 Cruger Assoc., 285 AD2d 431 [2001]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May 4, 2004, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.
The court properly denied defendant‘s motion to withdraw his guilty plea after giving him a full opportunity to be heard (see People v Frederick, 45 NY2d 520 [1978]). The record establishes that the plea was knowing, intelligent and voluntary. Defendant‘s claim that his counsel coerced him into pleading guilty by using “scare tactics” is unsupported by the record. Counsel properly advised defendant of his sentencing exposure, which was significantly greater than the sentence he received as a result of his plea.
We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about June 20, 2005, which, to the extent appealed from, granted defendant‘s motion for summary judgment dismissing plaintiff‘s claim for personal injuries resulting from an alleged assault, unanimously affirmed, without costs.
Defendant established its prima facie entitlement to summary judgment by submitting evidence that the locks on the front door of the building where plaintiff was allegedly assaulted were working properly on the date of the incident (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff‘s testimony that she found the front door of the building “wide open” on the day of the assault, without any evidence that the locks were broken, was insufficient to show that defendant breached its duty to provide minimal security (see Anis v Associated Univs., 277 AD2d 267 [2000]; Cisneros v 2001 Realty Co., 256 AD2d 299 [1998]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 1, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court‘s fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim had a sufficient opportunity to observe appellant during the robbery and made a reliable identification. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered January 10, 2005, convicting defendant, after a jury trial, of two counts of robbery in the first degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life, unanimously affirmed.
The court properly denied defendant‘s motion to suppress his statements and identification testimony. The police had probable cause to arrest defendant. The victim gave a detailed and accurate description of defendant, and within minutes of the crime the police saw defendant, who was the only person present in the area and who fit the description, about two blocks from the scene (see People v Ramos, 287 AD2d 305 [2001], lv denied 97 NY2d 658 [2001]). Moreover, defendant‘s conduct upon seeing the police, which consisted of turning around and walking in the opposite direction and then attempting to hide, further supported a finding of probable cause (see People v Brown, 24 AD3d 271 [2005], lv denied 6 NY3d 846 [2006]). The showup identification, conducted near the scene of the crime and shortly after its commission, was not unnecessarily suggestive (see People v Duuvon, 77 NY2d 541 [1991]).
The court properly exercised its discretion in denying defendant‘s request for a brief adjournment of the trial so that he could attempt to secure the attendance of a witness. Defendant did not establish that the witness could be located and would be available to testify within a reasonable time, or that her testimony would be material and not cumulative (see People v Foy, 32 NY2d 473, 476 [1973]). The witness, a friend of defendant, would have allegedly provided an explanation for defendant‘s presence in the area of the robbery, but that information would not have undermined the People‘s case. Since the witness‘s testimony would not have been exculpatory, defendant‘s constitutional right to present a defense was not violated (see Crane v Kentucky, 476 US 683, 689-690 [1986]).
Defendant‘s challenge to the court‘s Sandoval ruling is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court‘s ruling was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Michael R. Ambrecht, J.), rendered March 16, 2005, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years, unanimously affirmed.
The court properly exercised its disсretion in denying defendant‘s request for an adjournment to allow him to call a witness who had been hospitalized. Defendant failed to establish that the witness would be available to testify within a reasonable time, or that his testimony would be material (see People v Foy, 32 NY2d 473, 476 [1973]). The witness was allegedly a buyer of drugs from another person in the area, but there was no indication that he could have provided any testimony that would have undermined the People‘s case against defendant. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered June 29, 2004, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
The verdict was not against the weight of the evidence. There is no basis for disturbing the jury‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The undercover officer‘s reliable identification was corroborated by the recovery from defendant of the buy money.
The court properly denied defendant‘s request for a missing witness charge regarding the “ghost” officer, since defendant failed to establish that this officer was in a position to see anything relevant to the issues raised at trial (see People v Ortiz, 83 NY2d 989 [1994]; People v Dianda, 70 NY2d 894 [1987]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered October 2, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
The verdict was not against the weight of the evidence. There is no basis for disturbing the jury‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The undercover officer‘s reliable identification was corroborated by the recovery from defendant of a portion of the buy money.
The court properly denied defendant‘s request for a missing witness charge regarding the “ghost” officer, since defendant failed to establish that this officer was in a position to see anything relevant to the issues raised at trial (see People v Ortiz, 83 NY2d 989 [1994]; People v Dianda, 70 NY2d 894 [1987]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 1, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degreе, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court‘s fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim had a sufficient opportunity to observe appellant during the robbery and made a reliable identification. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered December 15, 2004, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, unanimously affirmed.
The court‘s Sandoval ruling was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). The court properly permitted the prosecutor to inquire into several of defendant‘s numerous convictions, as they were highly relevant to his credibility as a witness.
Defendant‘s challenge to the court‘s persistent felony offender adjudication is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court‘s adjudication was proper (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]). Defendant‘s sentence as a persistent felony offender was not based on any facts found by the court, but rather on his prior convictions (see People v Rivera, 5 NY3d 61 [2005], cert denied 546 US 984 [2005]).
We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order, Supreme Court, New York County (Kipp Thompson, J.), entered March 28, 2005, which, to the extent appealed from, denied defendant‘s cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Triable issues of fact exist as to whether defendant had constructive notice of the allegedly hazardous condition of the stairwell in which plaintiff fell (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). The evidence, viewed in the light most favorable to plaintiff, indicates that defendant‘s employees may have been aware of a recurring problem with debris in the stairwell, and that the stairwell may not have been cleaned regularly (see O‘Connor-Miele v Feliciano, 286 AD2d 602 [2001]; Simoni v 2095 Cruger Assoc., 285 AD2d 431 [2001]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May 4, 2004, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmеd.
The court properly denied defendant‘s motion to withdraw his guilty plea after giving him a full opportunity to be heard (see People v Frederick, 45 NY2d 520 [1978]). The record establishes that the plea was knowing, intelligent and voluntary. Defendant‘s claim that his counsel coerced him into pleading guilty by using “scare tactics” is unsupported by the record. Counsel properly advised defendant of his sentencing exposure, which was significantly greater than the sentence he received as a result of his plea.
We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about June 20, 2005, which, to the extent appealed from, granted defendant‘s motion for summary judgment dismissing plaintiff‘s claim for personal injuries resulting from an alleged assault, unanimously affirmed, without costs.
Defendant established its prima facie entitlement to summary judgment by submitting evidence that the locks on the front door of the building where plaintiff was allegedly assaulted were working properly on the date of the incident (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff‘s testimony that she found the front door of the building “wide open” on the day of the assault, without any evidence that the locks were broken, was insufficient to show that defendant breached its duty to provide minimal security (see Anis v Associated Univs., 277 AD2d 267 [2000]; Cisneros v 2001 Realty Co., 256 AD2d 299 [1998]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 1, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court‘s fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim had a sufficient opportunity to observe appellant during the robbery and made a reliable identification. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered January 10, 2005, convicting defendant, after a jury trial, of two counts of robbery in the first degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 yeаrs to life, unanimously affirmed.
The court properly denied defendant‘s motion to suppress his statements and identification testimony. The police had probable cause to arrest defendant. The victim gave a detailed and accurate description of defendant, and within minutes of the crime the police saw defendant, who was the only person present in the area and who fit the description, about two blocks from the scene (see People v Ramos, 287 AD2d 305 [2001], lv denied 97 NY2d 658 [2001]). Moreover, defendant‘s conduct upon seeing the police, which consisted of turning around and walking in the opposite direction and then attempting to hide, further supported a finding of probable cause (see People v Brown, 24 AD3d 271 [2005], lv denied 6 NY3d 846 [2006]). The showup identification, conducted near the scene of the crime and shortly after its commission, was not unnecessarily suggestive (see People v Duuvon, 77 NY2d 541 [1991]).
The court properly exercised its discretion in denying defendant‘s request for a brief adjournment of the trial so that he could attempt to secure the attendance of a witness. Defendant did not establish that the witness could be located and would be available to testify within a reasonable time, or that her testimony would be material and not cumulative (see People v Foy, 32 NY2d 473, 476 [1973]). The witness, a friend of defendant, would have allegedly provided an explanation for defendant‘s presence in the area of the robbery, but that information would not have undermined the People‘s case. Since the witness‘s testimony would not have been exculpatory, defendant‘s constitutional right to present a defense was not violated (see Crane v Kentucky, 476 US 683, 689-690 [1986]).
Defendant‘s challenge to the court‘s Sandoval ruling is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court‘s ruling was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Michael R. Ambrecht, J.), rendered March 16, 2005, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years, unanimously affirmed.
The court properly exercised its discretion in denying defendant‘s request for an adjournment to allow him to call a witness who had been hospitalized. Defendant failed to establish that the witness would be available to testify within a reasonable time, or that his testimony would be material (see People v Foy, 32 NY2d 473, 476 [1973]). The witness was allegedly a buyer of drugs from another person in the area, but there was no indication that he could have provided any testimony that would have undermined the People‘s case against defendant. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered June 29, 2004, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
The verdict was not against the weight of the evidence. There is no basis for disturbing the jury‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The undercover officer‘s reliable identification was corroborated by the recovery from defendant of the buy money.
The court properly denied defendant‘s request for a missing witness charge regarding the “ghost” officer, since defendant failed to establish that this officer was in a position to see anything relevant to the issues raised at trial (see People v Ortiz, 83 NY2d 989 [1994]; People v Dianda, 70 NY2d 894 [1987]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered October 2, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
The verdict was not against the weight of the evidence. There is no basis for disturbing the jury‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The undercover officer‘s reliable identification was corroborated by the recovery from defendant of a portion of the buy money.
The court properly denied defendant‘s request for a missing witness charge regarding the “ghost” officer, since defendant failed to establish that this officer was in a position to see anything relevant to the issues raised at trial (see People v Ortiz, 83 NY2d 989 [1994]; People v Dianda, 70 NY2d 894 [1987]). Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.
Buckley, P.J.
Friedman, Nardelli, Sweeny and Malone, JJ.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 1, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.
The court‘s fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court‘s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim had a sufficient opportunity to observe appellant during the robbery and made a reliable identification. Concur—Buckley, P.J., Friedman, Nardelli, Sweeny and Malone, JJ.</