           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

1333
KA 08-01367
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

RONNIE M. EDGESTON, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered May 8, 2008. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
weapon in the second degree and criminal possession of a weapon in the
third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]) and criminal possession of a weapon in
the third degree (§ 265.02 [1]). Defendant contends that Supreme
Court erred in failing to dismiss the indictment based upon a variance
in dates between the indictment and the grand jury testimony. That
contention arose in the context of defendant’s motion to dismiss the
indictment based on the legal insufficiency of the evidence before the
grand jury, however, and thus is not reviewable on this appeal from
the ensuing judgment based upon legally sufficient trial evidence (see
People v Smith, 4 NY3d 806, 807-808, affg 6 AD3d 1188; see generally
CPL 210.30 [6]; People v Cobb, 72 AD3d 1565, 1565-1566, lv denied 15
NY3d 803; People v Lee, 56 AD3d 1250, 1251, lv denied 12 NY3d 818).
Contrary to defendant’s further contention, we conclude that the court
properly refused to suppress the weapon at issue. The evidence
adduced at the suppression hearing established that the police conduct
was “justified in its inception and at every subsequent stage of the
encounter” (People v Nicodemus, 247 AD2d 833, 835, lv denied 92 NY2d
858; see People v De Bour, 40 NY2d 210, 215).


Entered:    December 23, 2011                      Frances E. Cafarell
                                                   Clerk of the Court
