| People v Perkins |
| 2009 NY Slip Op 09146 [68 AD3d 494] |
| December 10, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Anthony Perkins, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Matthew C. Williams of counsel), forrespondent.
Judgment, Supreme Court, New York County (Charles J. Tejada, J., at hearing; Edward J.McLaughlin, J., at jury trial and sentence), rendered May 20, 2008, convicting defendant ofrobbery in the second degree (five counts), burglary in the first degree, and burglary in thesecond degree (two counts), and sentencing him, as a persistent violent felony offender, to anaggregate term of 100 years to life, unanimously modified, as a matter of discretion in theinterest of justice, to the extent of directing that the sentences for the convictions ofsecond-degree robbery under the first and second counts of the indictment be servedconcurrently with each other and with all other sentences, resulting in a new aggregate term of50 years to life, and otherwise affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinationsconcerning identification and credibility. Defendant was reliably identified by crime victims,inculpated by an acquaintance, and connected to the crimes by extensive circumstantial evidenceincluding cell phone records. The physical injury element of first-degree burglary wasestablished by evidence that defendant hit the victim on the nose with a pistol and knocked herdown, causing bruising and pain in her nose and shoulder which led her to take pain relievers fora week. The jury could reasonably infer that these injuries caused "more than slight or trivialpain" (People v Chiddick, 8 NY3d445, 447 [2007]), and went beyond "petty slaps, shoves, kicks and the like" (Matter ofPhilip A., 49 NY2d 198, 200 [1980]).
The court properly denied defendant's suppression motion. Defendant's sister consented to asearch of her apartment, where defendant had been temporarily living. In a closet, the policefound an imitation pistol, along with clothing belonging to defendant, wrapped in a bedsheet. Forthe first time on appeal, defendant argues that his sister lacked actual or apparent authority toconsent to a search of this bundle, which he characterizes as a container holding his personalbelongings (see People v Gonzalez, 88 NY2d 289 [1996]). Defendant's only suppressionargument was that the seizure was the fruit of an unlawful arrest. Accordingly, the People werenever placed on notice of any need to develop the record as to the status of the bundle and thesister's actual or apparent authority to consent to [*2]itsexamination by the police (see People v Martin, 50 NY2d 1029 [1980]; People vTutt, 38 NY2d 1011 [1976]). While the hearing court stated in its decision that the sister hadauthority to consent to a search of her apartment, that did not "expressly decide[ ]" (CPL470.05 [2]) the issue presented on appeal. Moreover, even the court's limited ruling on thequestion of consent was not made in response to a protest by a party (see People v Colon, 46 AD3d260, 263 [2007]). We decline to review this unpreserved issue in the interest of justice. Asan alternative holding, we find that, to the extent the hearing record permits review, it establishesthat the sister possessed, or at least reasonably appeared to possess, common authority withdefendant over the closet and its contents, including the bundled bedsheet (see People v Loomis, 17 AD3d1019 [2005], lv denied 5 NY3d 830 [2005]; People v Castillo, 131 AD2d495, 496 [1987], lv denied 70 NY2d 749 [1987]).
We find the sentence excessive to the extent indicated. Concur—Gonzalez, P.J.,Friedman, McGuire, DeGrasse and Manzanet-Daniels, JJ.