PEOPLE v. BIMENTEL

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

The PEOPLE of the State of New York, Respondent, v. Jesus BIMENTEL, Defendant-Appellant.

Decided: October 27, 1998

SULLIVAN, J.P., ROSENBERGER, NARDELLI, WILLIAMS and ANDRIAS, JJ. Susan Axelrod, for Respondent. Nancy E. Little, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Jeffrey Atlas, J.), rendered April 24, 1996, convicting defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the first degree, and sentencing him, as a second felony offender, to a term of 8 years to life, unanimously modified, on the law, to replace the conviction for attempted criminal possession of a controlled substance in the first degree with a conviction for criminal possession of a controlled substance in the second degree, and otherwise affirmed.

Defendant's suppression motion was properly denied.   By placing a package under a parked car and walking away, defendant “demonstrated neither a subjective nor an objective expectation of privacy” (People v. Sosa, 246 A.D.2d 387, 388, 666 N.Y.S.2d 430, lv. denied 91 N.Y.2d 945, 671 N.Y.S.2d 725, 694 N.E.2d 894).   In any event, defendant voluntarily abandoned the bag (id.).

As the People correctly concede, the conviction should be replaced as indicated in order to conform to the intent of the parties.   We find no defect in the imposition of sentence (see, People v. Barzge, 244 A.D.2d 213, 664 N.Y.S.2d 283, lv. denied 91 N.Y.2d 889, 669 N.Y.S.2d 3, 691 N.E.2d 1029), and we perceive no abuse in sentencing discretion.

MEMORANDUM DECISION.