PEOPLE v. THOMAS

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. James THOMAS, Defendant-Appellant.

Decided: March 31, 1999

PRESENT:  HAYES, J.P., WISNER, PIGOTT, JR., SCUDDER and CALLAHAN, JJ. Mary E. Good, of counsel, The Legal Aid Bureau of Buffalo, Inc., Buffalo, for defendant-appellant. Paul Joseph Williams, III, of counsel, Erie County District Attorney's Office, Buffalo, for plaintiff-respondent.

 Defendant appeals from a judgment convicting him following a jury trial of attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ), assault in the first degree (Penal Law § 120.10 [1] ) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2] ).  We reject the contention of defendant that his clothing, seized from his work locker, should be suppressed.   The police arrested defendant at his place of employment after he was named as a suspect in a stabbing incident.   Defendant gave his co-worker and a police officer consent to open his locker to retrieve his jacket (see, People v. Adams, 53 N.Y.2d 1, 8, 439 N.Y.S.2d 877, 422 N.E.2d 537, rearg. denied 54 N.Y.2d 832, 443 N.Y.S.2d 1031, 427 N.E.2d 1192, cert. denied 454 U.S. 854, 102 S.Ct. 301, 70 L.Ed.2d 148;  People v. Cosme, 48 N.Y.2d 286, 290, 422 N.Y.S.2d 652, 397 N.E.2d 1319), and the blood-stained clothing seized from the locker was in plain view (see, Horton v. California, 496 U.S. 128, 133-137, 110 S.Ct. 2301, 110 L.Ed.2d 112;  People v. Diaz, 81 N.Y.2d 106, 110, 595 N.Y.S.2d 940, 612 N.E.2d 298).   The verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and the sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: