PEOPLE v. GARCIA

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

The PEOPLE of the State of New York, Respondent, v. Jose GARCIA, Defendant-Appellant.

Decided: March 21, 2006

BUCKLEY, P.J., FRIEDMAN, MARLOW, NARDELLI, McGUIRE, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Richard Stenberg of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Gregory H. Mansfield of counsel), for respondent.

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered February 18, 2004, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree, and sentencing him to a term of 3 years to life, unanimously affirmed.

 The court properly denied defendant's suppression motion.   There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).   When the police responded to a violent dispute among a group of men at the open door of an apartment and, from the common hallway, observed a man inside with a gun in plain view, exigent circumstances justified the officers' entry.   After arresting the armed man inside the apartment, the officers saw defendant disappear into a room.   They were thus entitled to conduct a protective sweep of the apartment to look for defendant or other potentially armed and dangerous persons, and lawfully recovered contraband in open view, some of which they saw defendant attempting to hide (see People v. Rivera, 257 A.D.2d 425, 683 N.Y.S.2d 513 [1999], lv. denied 93 N.Y.2d 901, 689 N.Y.S.2d 714, 711 N.E.2d 990 [1999] ).

 Defendant's guilty plea waived his statutory speedy trial claim (People v. O'Brien, 56 N.Y.2d 1009, 453 N.Y.S.2d 638, 439 N.E.2d 354 [1982] ).

Defendant is not entitled, pursuant to the amelioration doctrine of People v. Behlog, 74 N.Y.2d 237, 544 N.Y.S.2d 804, 543 N.E.2d 69 [1989], to the benefit of the reduced penalty contained in the Drug Law Reform Act (L. 2004, ch. 738), because the Legislature has expressly stated that the provision upon which defendant relies applies only to crimes committed after its effective date (People v. Nelson, 21 A.D.3d 861, 804 N.Y.S.2d 1 [2005] ).