| People v Nix |
| 2010 NY Slip Op 08511 [78 AD3d 1698] |
| November 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Akili Nix,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), renderedMay 29, 2003. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree.
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 murder inthe second degree (Penal Law § 125.25 [3]). In his omnibus motion papers, defendant sought tosuppress his statements to the police alleging, inter alia, that there was a Payton violation andthat his arrest pursuant to an arrest warrant issued for an unrelated charge was a "sham" or pretext tocircumvent his constitutional rights. At the suppression hearing, however, the prosecutor stated that hehad discussed the scope of the hearing with defense counsel based on the concerns of the prosecutorthat he would have to call the arresting officers as witnesses. The prosecutor then informed the courtthat defense counsel had said, "that's not part of his motion." Defense counsel did not object to theprosecutor's statements, and the only witnesses who testified at the suppression hearing were the twoofficers who took defendant's written statement after defendant had been taken into custody. Indeed,defense counsel's cross-examination of those two officers focused on the circumstances surroundingdefendant's statements while in custody. Because defendant failed to seek a ruling on those parts of hisomnibus motion concerning the alleged Payton violation and pretextual arrest or to object tothe admission of his statements in evidence at trial, we conclude that defendant abandoned hiscontentions that Supreme Court erred in refusing to suppress his statements to the police on thosegrounds (see People v Anderson, 52AD3d 1320, 1321 [2008], lv denied 11 NY3d 733 [2008]).
In any event, those contentions lack merit. With respect to his contention that there was aPayton violation, defendant relies on the holding of the United States Supreme Court inSteagald v United States (451 US 204, 211-216 [1981]) that a valid arrest warrant for oneindividual may not justify the search of the premises of a third party. Here, defendant was arrested inthe home of a third party, and he contends that the police officers were not authorized to enter thehome because they did not have a [*2]search warrant for the premisesor the consent of the homeowner (see generally CPL 120.80 [4]; 690.50; Steagald,451 US at 208-209; People v Hernandez, 218 AD2d 167, 172 [1996], lv denied 88NY2d 936, 1068 [1996]). "[T]he holding of Steagald[, however,] protects only thehomeowner whose premises are searched, not the suspect who is legally arrested on thehomeowner's premises . . . To hold otherwise would create the absurd situation in which asuspect . . . has greater rights in someone else's home than in his or her own home"(Hernandez, 218 AD2d at 172-173; see Com. v Stanley, 498 Pa 326, 333 n 4, 446A2d 583, 586 n 4 [1982]).
With respect to the contention of defendant that his arrest on an unrelated charge was a "sham" orpretext, we conclude that his arrest pursuant to an outstanding arrest warrant for a lesser charge"cannot be characterized as a sham merely because, after he was taken into custody, the police weremore interested in questioning him about a different and graver crime" (People v Clarke, 5 AD3d 807, 810[2004], lv denied 2 NY3d 796, 797 [2004] [internal quotation marks omitted]; see People v Hampton, 44 AD3d 1071[2007], lv denied 10 NY3d 840 [2008]; People v Cypriano, 73 AD2d 902 [1980]).
Contrary to the further contention of defendant, the court's Sandoval ruling does notconstitute an abuse of discretion (see Peoplev Grady, 40 AD3d 1368, 1370 [2007], lv denied 9 NY3d 923 [2007]; People v Carter, 34 AD3d 1342[2006], lv denied 8 NY3d 844). We conclude that the contention of defendant that the courterred in denying his motion for a mistrial is moot inasmuch as it involves only the counts upon which hewas acquitted (see generally People vFronjian, 22 AD3d 244 [2005], lv denied 6 NY3d 776 [2006]; People v Smith, 9 AD3d 745, 746 n[2004], lv denied 3 NY3d 742 [2004]). Contrary to defendant's further contention, "[t]hecourt's charge adequately conveyed the elements of burglary in the [second] degree, including therequirement of contemporaneous intent" (People v Salgado, 273 AD2d 860, 861 [2000],lv denied 95 NY2d 892 [2000]; see CJI2d[NY] Penal Law § 140.25 [2];cf. People v Gaines, 74 NY2d 358, 363 [1989]). Finally, the evidence is legally sufficient tosupport the conviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]) and,viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342,349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495). Present—Centra, J.P., Carni, Sconiers and Pine, JJ.