Opinion
February 14, 1995
Appeal from the County Court, Nassau County (Baker, J.).
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by providing that the sentences are to run concurrently with each other; as so modified, the judgment is affirmed.
It is axiomatic that, as to the credibility of witnesses, the determination of the hearing court, which had the advantage of hearing and seeing the witnesses first hand, is to be given great weight on appeal (see, People v. Prochilo, 41 N.Y.2d 759) and should be upheld unless it is clearly erroneous (see, People v Belli, 208 A.D.2d 640; People v. Pegues, 208 A.D.2d 773; People v Catala, 198 A.D.2d 293, 294). We find that there is nothing in the record which supports the defendant's contention that the testimony of the police officers was patently tailored to nullify constitutional objections (see, People v. Stanley, 191 A.D.2d 732; cf., People v. Lewis, 195 A.D.2d 523, 524; People v. Lebron, 184 A.D.2d 784, 787; Matter of Carl W., 174 A.D.2d 678, 679-680; People v. Miret-Gonzalez, 159 A.D.2d 647, 649; People v Garafolo, 44 A.D.2d 86, 88). We further find that the hearing court correctly determined that the police had probable cause to arrest the defendant (see, People v. Rivera, 176 A.D.2d 446; People v. Palacio, 121 A.D.2d 282, 282-283; compare, People v Sellers, 168 A.D.2d 581; People v. Dawkins, 163 A.D.2d 322, 324) and that the defendant's father consented to the police officers entering the house where they arrested the defendant (see, People v. Williams, 159 A.D.2d 743, 744).
The defendant's contention that the police failed to scrupulously honor his right to remain silent, made for the first time on appeal, is unpreserved for appellate review (see, People v. Brown, 195 A.D.2d 1055; People v. Williams, 191 A.D.2d 526, 527; see also, People v. Voliton, 83 N.Y.2d 192, 196; People v Martin, 50 N.Y.2d 1029, 1031) and, in any event, is without merit (see, People v. Gary, 31 N.Y.2d 68; People v. Brunner, 209 A.D.2d 532; People v. Pou, 185 A.D.2d 642; see also, People v. Crumwell, 199 A.D.2d 406).
The court properly denied the defendant's speedy-trial motion without a hearing since the defendant failed to set forth a prima facie case of a speedy-trial violation (see, CPL 210.45 [a], [c]; cf., People v. Davis, 184 A.D.2d 575, 577) and properly determined that the People were ready for trial within six months of the filing of the felony complaint (see, CPL 1.20; 30.30 [1] [a]; [4] [b], [c], [e], [g]; People v. Melendez, 182 A.D.2d 644; People v. Liotta, 79 N.Y.2d 841, 843; People v Hamilton, 187 A.D.2d 451, 452).
The defendant's claim of prejudice as a result of the Supreme Court's conduct at trial is unpreserved for appellate review (see, CPL 470.05; People v. Charleston, 56 N.Y.2d 886, 887; People v. Yut Wai Tom, 53 N.Y.2d 44, 54-56; People v. Thompson, 211 A.D.2d 651; People v. Wilson, 209 A.D.2d 654; People v. Dowdy, 154 A.D.2d 613, 614). In any event, this claim is without merit.
However, under the circumstances of this case, we find that the defendant's sentence was harsh and excessive (see, CPL 470.15 [b]) and, in the exercise of our discretion (see, CPL 470.15 [c]; People v. Suitte, 90 A.D.2d 80), modify it to four concurrent terms of 25 years to life imprisonment (see, People v Wilkes, 132 A.D.2d 982, 983).
We have considered the defendant's remaining contentions and find them to be without merit. Bracken, J.P., Balletta, Copertino and Hart, JJ., concur.