PEOPLE v. GRAHAM

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

The PEOPLE of the State of New York, Respondent, v. Gregory GRAHAM, Defendant-Appellant.

Decided: February 23, 1999

RUBIN, J.P., MAZZARELLI, ANDRIAS, SAXE, JJ. Rona Feinberg, for Respondent. David J. Klem, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Carol Berkman, J., on pretrial motions;  James Yates, J., at hearings, nonjury trial and sentence), rendered April 3, 1997, convicting defendant of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 8 years to life, unanimously affirmed.

 Summary denial of defendant's motion to suppress physical evidence was proper since the 45-day period in which to make such a motion (CPL 255.20 [1] ) had elapsed and defendant failed to demonstrate due diligence in ascertaining the facts, given the availability of information (CPL 255.20 [3];  see, People v. Toxey, 220 A.D.2d 204, 631 N.Y.S.2d 846, lv. denied 88 N.Y.2d 855, 644 N.Y.S.2d 701, 667 N.E.2d 351).   Moreover, the motion was properly denied without a hearing since defendant's conclusory allegations were insufficient to raise an issue of fact as to the lawfulness of his arrest (CPL 710.60[3][b];  see, People v. Rosario, 245 A.D.2d 151, 665 N.Y.S.2d 662, lv. denied 91 N.Y.2d 896, 669 N.Y.S.2d 11, 691 N.E.2d 1037).

 The verdict was not against the weight of the evidence.   The element of robbery in the second degree requiring that defendant be aided by another person (Penal Law § 160.10[1] ) was satisfied by ample evidence that defendant's companion intentionally aided defendant by blocking the complainant and others trying to retrieve the complainant's purse and assisted defendant in forcefully pushing open the door and escaping the store.   Defendant's companion was also seen sharing in the proceeds of the crime (see, People v. Taylor, 203 A.D.2d 77, 610 N.Y.S.2d 30, lv. denied 83 N.Y.2d 915, 614 N.Y.S.2d 397, 637 N.E.2d 288).

MEMORANDUM DECISION.