PEOPLE v. COBADO

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Matthew M. COBADO, Defendant-Appellant.

Decided: March 18, 2005

PRESENT:  HURLBUTT, J.P., SMITH, PINE, LAWTON, AND HAYES, JJ. D.J. & J.A. Cirando, Esqs., Syracuse (Rebecca A. Crance of Counsel), for Defendant-Appellant. Edward M. Sharkey, District Attorney, Little Valley (Lori Pettit Rieman of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, three counts of kidnapping in the first degree (Penal Law § 135.25[2] ), four counts of rape in the first degree (§ 130.35 [1] ) and one count of criminal possession of a weapon in the second degree (§ 265.03 [2] ).   County Court properly refused to suppress evidence seized from a duffel bag.   Defendant voluntarily consented to the search of the bag and thus the search was lawful (see People v. Caldwell, 221 A.D.2d 972, 634 N.Y.S.2d 331, lv. denied 87 N.Y.2d 920, 641 N.Y.S.2d 602, 664 N.E.2d 513).   The court also properly refused to suppress statements spontaneously made by defendant when a police officer asked him for biographical information (see generally People v. Youngblood, 294 A.D.2d 954, 954-955, 742 N.Y.S.2d 762, lv. denied 98 N.Y.2d 704, 747 N.Y.S.2d 423, 776 N.E.2d 12).   Defendant failed to renew his motion to dismiss at the close of evidence and thus failed to preserve for our review his further contention that the evidence is legally insufficient to support the conviction (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396).   In any event, the evidence is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant received effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400), and the sentence is not unduly harsh or severe.   Defendant's remaining contention is unpreserved for our review (see CPL 470.05[2] ) and, in any event, is lacking in merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: