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People v. Otero

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 5, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ISMAEL OTERO, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Budd G. Goodman, J.), rendered October 6, 2005, convicting defendant, upon his guilty plea, of criminal sale of a controlled substance in the fourth degree, and sentencing him, as a second felony offender, to a term of 4 to 8 years, unanimously affirmed.

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.

Andrias, J.P., Nardelli, Acosta, DeGrasse, JJ.

5602/02

This matter was previously held in abeyance and remanded for a hearing on defendant's motion to suppress the undercover officer's identification, and to suppress evidence recovered from a jacket found in defendant's vicinity (see 51 AD3d 553 [2008].

This Court is now in receipt of an order of Justice A. Kirke Bartley, entered November 25, 2008, indicating that defendant failed to appear for a hearing despite the matter being calendared on six different occasions. Furthermore, defense counsel submitted a letter advising that defendant has relocated to Florida and does not intend to return to New York to litigate the motion, and that defendant has authorized him to withdraw the motion. Accordingly, the motion to suppress was denied as abandoned, and we deem the challenge to it on appeal abandoned as well.

Aside from the challenge to the denial of the suppression motion, the only other issue raised on appeal was the excessiveness of the sentence. Inasmuch as we do not find the sentence to be excessive, the judgment should be affirmed.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090505

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