| People v Gibbs |
| 2014 NY Slip Op 05651 |
| Decided on August 6, 2014 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on August 6, 2014SUPREME COURT OF THE STATE OF NEW YORKAppellate Division, Second Judicial Department
L. PRISCILLA HALL, J.P.
SHERI S. ROMAN
COLLEEN D. DUFFY
HECTOR D. LASALLE, JJ.
2012-00483
(Ind. No. 10783/10)
v
Bryant Gibbs, appellant.
Seymour W. James, Jr., New York, N.Y. (Michelle Fox and David Crow of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, and Claibourne Henry of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered January 5, 2012, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
There is no merit to the defendant's contention that he was deprived of a fair trial by the Supreme Court's grant of the People's request to hold an independent source hearing after jury selection. Although the defendant had a right to a determination of a pretrial motion prior to the commencement of trial (see CPL 710.40[3]), he waived this right by consenting to the court's deviation from the statutory procedure (see People v Yousef, 236 AD2d 868, 869; People v Ramirez, 229 AD2d 452, 452; People v Orkabi, 160 AD2d 644, 645).
Upon our independent review of the evidence pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633).
Contrary to the defendant's contention, the Supreme Court did not improperly sentence him based on the offenses of which his codefendant was convicted (see People v McGrath, 20 AD3d 574, 575; see also People v Forde, _____ AD3d _____ [decided herewith]). Moreover, the sentence imposed was not improper merely because it exceeded a pretrial plea offer (see People v Johnson, 76 AD3d 1103, 1104-1105), and the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).
HALL, J.P., ROMAN, DUFFY and LASALLE, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court