People v. Boccaccio

Nov 9, 2001
Versions:288 A.D.2d 898
732 N.Y.S.2d 385
2001 N.Y. App. Div. LEXIS 10640

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting her after a bench trial of criminal possession of stolen property in the fifth degree (Penal Law § 165.40) and sentencing her to a definite term of incarceration of one year. We reject the contention of defendant that she was denied due process based on County Court’s failure to rule on her pretrial motion to suppress the physical evidence found in her possession. Defendant did not obtain a ruling on that motion and failed to object when the evidence was introduced at trial, and thus we conclude that she abandoned the motion (see, People v DiLenola, 245 AD2d 1132, 1333; see also, People v Brown, 284 AD2d 191; People v Champion, 273 AD2d 899, 900, Iv denied 96 NY2d 733). We further reject the contention that, in sentencing defendant, the court considered crimes of which she was acquitted. The court’s comment at sentencing to which defendant refers was not a basis for the sentence imposed (cf., People v Grant, 191 AD2d 297, Iv denied 82 NY2d 719). The sentence is neither unduly harsh nor severe. (Appeal from Judgment of Genesee County Court, Punch, J. — Criminal Possession Stolen Property, 5th Degree.) Present — Green, J. P., Hayes, Scudder, Kehoe and Burns, JJ.