PEOPLE v. WHITEHEAD (2007)

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (LaPera, J.), rendered March 28, 2006, convicting him of robbery in the first degree and robbery in the second degree (two counts), upon a jury verdict, and imposing sentence.  The appeal brings up for review the denial, after a hearing (Calabrese, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

 The hearing court properly denied that branch of the defendant's omnibus motion which was to suppress a handgun.  The defendant, by his words and conduct, consented to the limited warrantless search conducted by the detective at his house (see People v. Kelley, 220 A.D.2d 456, 631 N.Y.S.2d 926;  People v. Davis, 224 A.D.2d 541, 543, 637 N.Y.S.2d 977;  see also People v. Gonzalez, 88 N.Y.2d 289, 293, 644 N.Y.S.2d 673, 667 N.E.2d 323;  People v. Cosme, 48 N.Y.2d 286, 290, 422 N.Y.S.2d 652, 397 N.E.2d 1319;  People v. Williams, 37 A.D.3d 626, 627, 829 N.Y.S.2d 668).  In light of the foregoing, the defendant's contention regarding whether there were exigent circumstances to justify the warrantless search has been rendered academic.

 Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 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 (see People v. Green, 41 A.D.3d 862, 841 N.Y.S.2d 313, lv. denied 9 N.Y.3d 961,848 N.Y.S.2d 30, 878 N.E.2d 614 ;  People v. Gonzalez, 3 A.D.3d 579, 770 N.Y.S.2d 661;  People v. Fermin, 235 A.D.2d 328, 653 N.Y.S.2d 316).  Moreover, resolution of issues of credibility is primarily a matter to be their determination should be accorded great deference on appeal (see People v. Romero, 7 N.Y.3d 633, 644–645, 826 N.Y.S.2d 163, 859 N.E.2d 902).  Upon the exercise of our factual review power (see CPL 470.07[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 at 644–645, 826 N.Y.S.2d 163, 859 N.E.2d 902).

Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel (see People v. Henry, 95 N.Y.2d 563, 565–566, 721 N.Y.S.2d 577, 744 N.E.2d 112;  People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584).

 The defendant's contention that CPL 270.10 is unconstitutional is unpreserved for appellate review (see CPL 470.05[2] ) and, in any event, is not properly before this court due to the defendant's failure to notify the Attorney General that he was challenging the constitutionality of a state statute (see CPLR 1012[b][1];  [3];  see also People v. Troy, 28 A.D.3d 689, 690, 817 N.Y.S.2d 289).

 Contrary to the defendant's contention, “[i]t is well established that in reaching a sentencing determination, the court may consider not only prior offenses for which the defendant was convicted, but even offenses for which he had not been convicted” (People v. Khan, 146 A.D.2d 806, 807, 537 N.Y.S.2d 284;  see People v. Gonzalez, 242 A.D.2d 306, 306–307, 661 N.Y.S.2d 50;  People v. Kaplan, 199 A.D.2d 82, 83, 606 N.Y.S.2d 151;  see also Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337).

The defendant's remaining contentions are without merit.