People v. Killings

Mar 15, 1993
Versions:191 A.D.2d 586
595 N.Y.S.2d 79

—Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mclnerney, J.), rendered October 11, 1990, convicting him of criminal possession of a controlled substance in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, without a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

Ordered that the judgment is affirmed.

We find that the court did not err in summarily denying that branch of the defendant’s omnibus motion which was to suppress evidence of narcotics allegedly found in his possession. The affirmation submitted by the defendant’s attorney in support of the motion merely made a conclusory claim that the defendant did not consent to the search of his person, premises, or property and failed to set forth the necessary allegations of fact (see, CPL 710.60 [3]; People v Reynolds, 71 NY2d 552; People v Morrow, 183 AD2d 853; People v Montalvo, 182 AD2d 779; People v Williams, 170 AD2d 551). Following jury selection, the defendant renewed his motion to suppress physical evidence on the ground that certain Rosario material contained what he alleged were new facts about the recovery of the narcotics. We find that the court did not err in denying the motion, as it was based on grounds which the defendant, with due diligence, could have presented in his initial motion within the 45-day time period in CPL 255.20 (1) (see, CPL 255.20 [3]; People v Franklin, 127 AD2d 685; cf., People v Levine, 162 AD2d 718).

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]). Thompson, J. P., Sullivan, O’Brien and Copertino, JJ., concur.