PEOPLE v. BROWN (2000)

 On this appeal from a judgment convicting him of two counts of criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ) and one count of criminal possession of stolen property in the fifth degree (Penal Law § 165.40), defendant contends that a search warrant executed on his property was defective.   We reject that contention.   Defendant was identified as the perpetrator of a theft and was the last person seen with several of the listed items.   Therefore, it was reasonable to believe that evidence of the crime would be found in an area controlled by him (see, People v. Paccione, 259 A.D.2d 563, 688 N.Y.S.2d 559, lv. denied 93 N.Y.2d 975, 695 N.Y.S.2d 61, 716 N.E.2d 1106;  see also, People v. Tambe, 71 N.Y.2d 492, 503, 527 N.Y.S.2d 372, 522 N.E.2d 448).

 The search warrant contained an overly broad command to seize “any other property the possession of which would be considered contraband” (see, e.g., People v. Conte, 159 A.D.2d 993, 994, 552 N.Y.S.2d 743, lv. denied 76 N.Y.2d 733, 558 N.Y.S.2d 894, 557 N.E.2d 1190;  see also, People v. Giordano, 72 A.D.2d 550, 551, 420 N.Y.S.2d 719;  People v. Niemczycki, 67 A.D.2d 442, 444-445, 415 N.Y.S.2d 258).   That phrase may be stricken under the doctrine of severability (see, People v. Hansen, 38 N.Y.2d 17, 21-22, 377 N.Y.S.2d 461, 339 N.E.2d 873;  People v. Conte, supra, at 994, 552 N.Y.S.2d 743).   Unlike in People v. Giordano (supra ), the items were lawfully seized under the plain view doctrine.   Even without the offending phrase, the police would have been authorized to search the areas where they recovered the firearms (see, People v. Basilicato, 64 N.Y.2d 103, 115, 485 N.Y.S.2d 7, 474 N.E.2d 215;  see also, People v. Sage, 204 A.D.2d 746, 747, 612 N.Y.S.2d 648, lv. denied 84 N.Y.2d 832, 617 N.Y.S.2d 152, 641 N.E.2d 173).

 We reject defendant's contention that the People's announcement of readiness for trial was illusory.   Even without the ballistics report, the People were still “ ‘technically positioned’ ” to go to trial (People v. Gutter, 222 A.D.2d 330, 331, 636 N.Y.S.2d 19), and they “could have proceeded to trial on the other charges in the indictment” (People v. Terry, 225 A.D.2d 306, 307, 639 N.Y.S.2d 3, lv. denied 88 N.Y.2d 886, 645 N.Y.S.2d 461, 668 N.E.2d 432).   Furthermore, even without consideration of the announcement of readiness, defendant was actually tried within the time period chargeable to the People (see, CPL 30.30[1][a] ).

 Because defendant's conviction is based on legally sufficient trial evidence, defendant's challenge to the sufficiency of the evidence before the Grand Jury is not reviewable on appeal (see, CPL 210.30[6];  People v. Wiggins, 89 N.Y.2d 872, 874, 653 N.Y.S.2d 91, 675 N.E.2d 845).

Judgment unanimously affirmed.

MEMORANDUM: