People v. McAllister, 47 A.D.3d 731

47 A.D.3d 731

N.Y. App. Div.

2008

centrifugal

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v SAMUEL JONES, JR., Appellant.

Supreme Court, Appellate Division, Second Department, New York

January 22, 2008

848 NYS2d 885 | 47 AD3d 731

Appeal by the defendant from a judgment of the County Court, Nassau County (Maron, J.), rendered July 25, 2006, convicting him of attempted burglary in the third degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

We have reviewed the record and agree with the defendant‘s assigned counsel that there are no nonfrivolous issues which could be raised on appeal. Counsel‘s application for leave to withdraw as counsel is granted (see Anders v California, 386 US 738 [1967]; People v Paige, 54 AD2d 631 [1976]; cf. People v Gonzalez, 47 NY2d 606 [1979]). Crane, J.P., Fisher, Ritter, Covello and Dickerson, JJ., concur.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v KEITH MCALLISTER, Appellant. [850 NYS2d 495]

Appeal by the defendant from a judgment of the County Court, Nassau County (Honorof, J.), rendered August 15, 2006, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant‘s omnibus motion which was to suppress his statement to law enforcement officials.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish beyond a reasonable doubt that the defendant possessed a gravity knife in violation of Penal Law § 265.02 (1) (see Penal Law § 265.02 [1]; § 265.00 [5]; § 265.01 [1]). Moreover, upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

Contrary to the defendant‘s contention, the County Court substantially complied with the requirements of CPL 400.21 in adjudicating him a second felony offender (see People v Alston, 289 AD2d 339 [2001]). Since the defendant admitted that he was the person convicted of the predicate felony, and since there is no indication that the defendant contemplated a challenge to the constitutionality of his prior conviction (see CPL 400.21 [7] [b]), the Supreme Court‘s failure to make a formal inquiry as to whether he wished to controvert the allegations of the second felony offender statement was a harmless oversight (see People v Flores, 40 AD3d 876, 878 [2007]; People v Hickman, 276 AD2d 563, 564 [2000]; People v Witherspoon, 155 AD2d 636, 637 [1989]).

The hearing court properly denied that branch of the defendant‘s motion which was to suppress his statement to law enforcement officials (see People v Bailey, 24 AD3d 684 [2005]; People v Benjamin, 17 AD3d 688 [2005]).

The defendant‘s remaining contention is without merit (see CPL 200.60). Prudenti, P.J., Mastro, Santucci and Lifson, JJ., concur.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v BRENDA A. PRESSLEY, Appellant. [848 NYS2d 885]

Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.), rendered August 7, 2006, convicting her of grand larceny in the third degree, upon her plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

We have reviewed the record and agree with the defendant‘s assigned counsel that there are no nonfrivolous issues which could be raised on appeal. Counsel‘s application for leave to withdraw as counsel is granted (see Anders v California, 386 US 738 [1967]; People v Paige, 54 AD2d 631 [1976]; cf. People v Gonzalez, 47 NY2d 606 [1979]). Spolzino, J.P., Skelos, Lifson and McCarthy, JJ., concur.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v MAURICE RUSSELL, Appellant. [849 NYS2d 607]

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered December 1, 2005, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.

The defendant, who was charged with criminal possession of a weapon in the third degree, interposed the statutory defense of temporary lawful possession (see Penal Law § 25.00 [1]). The

PRUDENTI, P.J., MASTRO, SANTUCCI and LIFSON, JJ.

SPOLZINO, J.P., SKELOS, LIFSON and MCCARTHY, JJ.