People v. Smith

Judgment, Supreme Court, Bronx County (Arlene Silverman, J., at suppression hearing; Gerald Sheindlin, J., at plea and sentence), rendered October 8, 1993, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to a term of 4 to 8 years, unanimously affirmed. Defendant’s claim that the police testimony at the suppression hearing was unbelievable because medical records show that he was shot in the buttocks, and therefore could not have been facing the police during the shootout, as the officers testified, is unpreserved for appellate review as a matter of law, no such claim having been made before the suppression court (People v Gonzalez, 55 NY2d 887), and review in the interest of justice is precluded by the absence of such medical records in the record (People v Clendinen, 173 AD2d 366, lv denied 80 NY2d 895). In any event, the medical record would only show the nature of defendant’s wound, and not that he was never facing the police or that the police testimony was otherwise fabricated. The officers’ testimony recounts plausible interactions with defendant, and contains nothing that is contrary to experience or self-contradictory (People v Jamal G, 196 AD2d 751, lv denied 82 NY2d 850). Concur — Sullivan, J. P., Rubin, Kupferman, Asch and Nardelli, JJ.