PEOPLE v. YUNGA (2013)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Blumenfeld, J.), rendered April 29, 2011, convicting him of rape in the first degree, burglary in the first degree, assault in the first degree, assault in the second degree (two counts), unlawful imprisonment, and endangering the welfare of a child (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (O'Dwyer, J.H.O.), 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 found that the police had probable cause to arrest the defendant (see People v. Prego, 102 A.D.3d 814, 814–815, 957 N.Y.S.2d 872). Accordingly, the court properly denied that branch of the defendant's omnibus motion which was to suppress physical evidence recovered incident to his arrest (see People v. Peradze, 15 A.D.3d 678, 678–679, 791 N.Y.S.2d 586; People v. Maldonado, 244 A.D.2d 759, 762, 666 N.Y.S.2d 224).

The defendant's contention that the evidence was legally insufficient to support his convictions of burglary in the first degree and assault in the first degree is unpreserved for appellate review (see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, 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 of burglary in the first degree and assault in the first degree beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), and contrary to the defendant's contentions, we are satisfied that the verdict of guilt as to burglary in the first degree, assault in the first degree, and rape in the first degree was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1; People v. Romero, 7 N.Y.3d 633, 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 under the United States Constitution (see Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674). Moreover, the defendant was not deprived of the effective assistance of counsel under the New York Constitution since, viewing defense counsel's performance in totality, counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400; People v. Collado, 90 A.D.3d 672, 673, 933 N.Y.S.2d 738).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contention, raised in his pro se supplemental brief, is without merit.