Opinion
November 13, 2000.
Appeal from Judgment of Niagara County Court, Hannigan, J. — Grand Larceny, 2nd Degree.
PRESENT: PIGOTT, JR., P. J., GREEN, HAYES, KEHOE AND LAWTON, JJ.
Judgment unanimously modified on the law and as modified affirmed and matter remitted to Niagara County Court for resentencing in accordance with the following Memorandum:
In appeal No. 1, we conclude that County Court properly denied defendant's motion to dismiss the indictment based upon the insufficiency of the proof of value before the Grand Jury. The court's ruling on the sufficiency of the evidence before the Grand Jury prior to defendant's first trial was the law of the case ( see, People v. Guin, 243 A.D.2d 649, 650, lv denied 91 N.Y.2d 834; see also, People v. Evans, 94 N.Y.2d 499, 504). In any event, the validity of the order denying the renewed motion "is not reviewable upon an appeal from an ensuing judgment of conviction based upon legally sufficient trial evidence"; (CPL 210.30; see, People v. Martinez, 257 A.D.2d 479, 480, lv denied 93 N.Y.2d 876). Defendant failed to preserve for our review his contention that the trial evidence is legally insufficient to support the conviction ( see, People v. Gray, 86 N.Y.2d 10, 19) and his contentions challenging the admissibility of eyewitness identification testimony ( see, People v. Rodriguez, 148 A.D.2d 759, lv denied 74 N.Y.2d 851). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]).
In appeal No. 2, we conclude that County Court properly denied defendant's motion to dismiss the indictment based upon the 28-month period of preindictment delay. The delay resulted from the lack of sufficient evidence to support a charge against defendant ( see, People v. Singer, 44 N.Y.2d 241, 254) and the involvement of the investigating officers in a task force investigation ( see, People v. Brown, 262 A.D.2d 419, 420). Further, defendant offered nothing more than a "routine-like claim of prejudice" ( People v. Fuller, 57 N.Y.2d 152, 160) and demonstrated no special circumstances causing impairment of his right to a fair trial ( see, People v. Fuller, supra, at 159; People v. Mosher, 187 A.D.2d 861).
The court also properly denied the motion of defendant to suppress his statement to police investigators and an Assistant District Attorney made when defendant was incarcerated on an unrelated charge. The statement was made at a meeting requested by defendant and conducted in an office in the Sheriff's Department. Defendant was not handcuffed or otherwise physically restrained. Under those circumstances, "defendant could not have reasonably believed that he was subject to a restriction over and above that of ordinary confinement so as to be deemed `in custody', and, therefore, Miranda warnings were not necessary" ( People v. Ward, 241 A.D.2d 767, 769, lv denied 91 N.Y.2d 837; see, People v. Alls, 83 N.Y.2d 94, 100, cert denied 511 U.S. 1090).
In his pro se supplemental brief, defendant raises a number of contentions relating to his convictions in both appeals. His contention that reversal is required on the ground that the People failed to produce Brady material is based upon facts outside the trial record and is therefore not properly before us ( see, People v. Marvin, 216 A.D.2d 930, lv denied 86 N.Y.2d 844). His contention that the People failed to produce Rosario material is also based upon facts outside the trial record. Those facts were developed in connection with defendant's motion to vacate the conviction pursuant to CPL 440.10, but defendant did not obtain permission to appeal from the order denying that motion. The alleged Rosario violation, therefore, is also not properly before us ( see, People v. Lyons, 244 A.D.2d 301, lv denied 92 N.Y.2d 880).
At the persistent felony offender hearing, defendant challenged his two previous felony convictions on the ground that they were obtained in violation of his constitutional right to effective assistance of counsel. The court erred in sentencing defendant as a persistent felony offender without conducting a hearing to address defendant's constitutional challenge to the previous felony convictions (s ee, CPL 400.20 [9]; People v. Drummond, 87 A.D.2d 828, 828-829; see also, People v. Nolley, 233 A.D.2d 925, 926, lv denied 89 N.Y.2d 1039; People v. Wright, 119 A.D.2d 973, 973-974, lv denied 67 N.Y.2d 1058; People v. Thompson, 60 A.D.2d 765). We therefore modify the judgments by vacating the sentences, and we remit the matters to Niagara County Court for resentencing. In view of our decision, we do not address defendant's remaining contentions.