PEOPLE v. NEYSMITH (2019)

Judgments, Supreme Court, New York County (Maxwell Wiley, J., at grand jury application; Arlene D. Goldberg, J. at suppression hearing, pleas, and sentencing), rendered March 30, 2017, convicting defendant of criminal possession of a controlled substance in the third and fourth degrees, and sentencing him, as a second felony offender previously convicted of a violent felony, to concurrent terms of seven years, unanimously affirmed.

The court properly denied defendant's suppression motion.  There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).  The officer's testimony regarding his observation of defendant selling drugs was not so implausible as to warrant rejection of the hearing court's findings of fact (see e.g. People v. Lewis, 136 A.D.3d 468, 24 N.Y.S.3d 504 [1st Dept. 2016], lv denied 27 N.Y.3d 1001, 38 N.Y.S.3d 111, 59 N.E.3d 1223 [2016] ).

Defendant did not preserve his claim that the court's consideration of the People's ex parte motion to resubmit a charge to the grand jury violated his right to counsel, and we decline to review it in the interest of justice.  We find that this argument falls within the category of right-to-counsel claims that require preservation (see People v. Garay, 25 N.Y.3d 62, 67, 7 N.Y.S.3d 254, 30 N.E.3d 145 [2015], cert. denied 577 U.S. ––––, 136 S.Ct. 501, 193 L.Ed.2d 399 [2015] ).  As an alternative holding, we reject it on the merits (see e.g. People v. Davis, 149 A.D.3d 451, 453, 52 N.Y.S.3d 33 [1st Dept. 2017], lv denied 29 N.Y.3d 1077, 64 N.Y.S.3d 167, 86 N.E.3d 254 [2017] ).

We perceive no basis for reducing the sentence.