PEOPLE v. FIGUEROA

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

The PEOPLE, etc., respondent, v. Bernardo FIGUEROA, appellant.

Decided: July 31, 2007

ROBERT W. SCHMIDT, J.P., FRED T. SANTUCCI, PETER B. SKELOS, and RUTH C. BALKIN, JJ. Robert C. Mitchell, Riverhead, N.Y. (Robert B. Kenney of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mullen, J.), rendered March 10, 2004, convicting him of grand larceny in the third degree and possession of burglar's tools, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

ORDERED that the judgment is modified, on the law, by vacating the sentence imposed;  as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Suffolk County, for resentencing in accordance herewith.

Contrary to the defendant's contention, the People established at the suppression hearing that the police had probable cause to arrest him (see People v. Maldonado, 86 N.Y.2d 631, 635, 635 N.Y.S.2d 155, 658 N.E.2d 1028;  People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451;  People v. Hayes, 32 A.D.3d 1047, 1047, 820 N.Y.S.2d 895, lv. denied 8 N.Y.3d 985, 838 N.Y.S.2d 488, 869 N.E.2d 664).

 The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review, since defense counsel made only a general motion to dismiss the indictment and did not elaborate with specific facts or grounds the basis for dismissal (see CPL 470.05[2];  People v. Finger, 95 N.Y.2d 894, 895, 716 N.Y.S.2d 34, 739 N.E.2d 290;  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Furthermore, resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828).   Upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, supra ).

As the People correctly concede, the defendant was improperly sentenced as a second felony offender.   Accordingly, we modify the judgment by vacating the sentence imposed, and we remit the matter to the Supreme Court, Suffolk County, so that the defendant may be resentenced.   All issues concerning the appropriate sentence to be imposed may be raised before the sentencing court upon remittal.   In light of our determination, the defendant's contention that the sentence is otherwise excessive has been rendered academic.

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