NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
December 29, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
CATHY MELLER, DEFENDANT-APPELLANT.
Judgment, Supreme Court, New York County (Michael R. Ambrecht, J. at motions; Arlene R. Silverman, J. at plea and sentence), rendered April 6, 2007, convicting defendant of criminal possession of a controlled substance in the fourth degree, and sentencing her to a term of 5 years' probation, 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., Friedman, Acosta, DeGrasse, RomÁn, JJ.
The court properly denied defendant's motion to controvert a search warrant for defendant's apartment, issued in connection with a controlled delivery of a package that had been intercepted and found to contain cocaine, and that had been addressed to a person other than defendant while listing defendant as the contact person. Defendant did not preserve her claim that she was entitled to an evidentiary hearing based on her assertion that, when she accepted the package, she protested that the addressee did not live there, and we decline to review it in the interest of justice. As an alternative holding, we find it without merit. The legality of the search was established by the warrant and its supporting papers (see People v Glen, 30 NY2d 252, 262 , cert denied sub nom. Baker v New York, 409 US 849 ), and there was no factual dispute requiring a hearing (cf. People v Burton, 6 NY3d 584, 587 ). Regardless of the relevance of defendant's statements at the time of the controlled delivery to the issue of her guilt or innocence had she chosen to go to trial, they were irrelevant to the legality of the search (see People v Wyatt, 60 AD2d 958, 959 , affd 46 NY2d 926 ).
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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