PEOPLE v. WILLIAMS (2007)

Appeal by the defendant from a judgment of the County Court, Westchester County (Smith, J., at trial;  Lange, J., at sentence), rendered November 26, 2003, convicting him of burglary in the third degree and criminal mischief in the third degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Smith, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

 There is no basis to disturb the hearing court's determination that the officers conducted a lawful search of the defendant's rented vehicle, after securing a search warrant, in view of the testimony and evidence at the Mapp hearing (see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081) and the credibility determinations of the hearing court (see People v. Davis, 221 A.D.2d 358, 359, 633 N.Y.S.2d 373;  People v. Overton, 188 A.D.2d 491, 592 N.Y.S.2d 603;  People v. Oates, 104 A.D.2d 907, 910, 480 N.Y.S.2d 518;   People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500).   Consequently, that branch of the defendant's omnibus motion which was to suppress physical evidence recovered from the vehicle and derivative evidence was properly denied.

 The defendant's challenge to the legal sufficiency of the evidence to sustain his convictions is unpreserved for appellate review since defense counsel made only a general motion to dismiss the indictment and did not elaborate with specific facts or grounds the basis for dismissal (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Eley, 31 A.D.3d 662, 663, 820 N.Y.S.2d 75;  People v. Carranza, 306 A.D.2d 351, 352, 760 N.Y.S.2d 667, affd. 3 N.Y.3d 729, 786 N.Y.S.2d 381, 819 N.E.2d 997).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), 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 (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 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 The defendant's contention that he was improperly sentenced as a second felony offender is without merit.   The People sustained their burden of proving, beyond a reasonable doubt, that the defendant previously was convicted of a felony upon which his adjudication as a second felony offender was based (see CPL 400.21;  People v. Myron, 28 A.D.3d 681, 684, 814 N.Y.S.2d 198;  People v. Goldsmith, 269 A.D.2d 465, 466, 702 N.Y.S.2d 911;  People v. Espinoza, 241 A.D.2d 554, 661 N.Y.S.2d 244).   In opposition, the defendant failed to adduce proof sufficient to support his contention that his prior felony conviction was unconstitutionally obtained (see People v. Day, 8 A.D.3d 495, 496, 778 N.Y.S.2d 513;  People v. Allen, 4 A.D.3d 479, 480, 771 N.Y.S.2d 685).   The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's contention raised in Point I of his brief does not require reversal.   The defendant's remaining contentions are unpreserved for appellate review.