| People v Cobb |
| 2012 NY Slip Op 05475 [97 AD3d 1166] |
| July 6, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Cedric Cobb,Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.), renderedApril 13, 2011. The judgment convicted defendant, after a nonjury trial, of criminal possession ofa controlled substance in the third degree, criminal possession of a controlled substance in thefourth degree and unlawful possession of marihuana.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of,inter alia, criminal possession of a controlled substance in the third degree (Penal Law §220.16 [1]) and criminal possession of a controlled substance in the fourth degree (§220.09 [1]). We agree with defendant that County Court erred in refusing to suppress thestatement that he made to the police. At the conclusion of the suppression hearing, defendantchallenged the admissibility of the statement on the ground that the People failed to establish thatthe police officer who questioned him advised him that he had the right to remain silent.Although the court refused to suppress the statement "based on a determination that the warningsgiven were legally sufficient, examination of the transcript of the hearing discloses the absence ofany proof that the component of the warnings specifically identified by [defendant] had beengiven," and thus the statement should have been suppressed (People v Hutchinson, 59NY2d 923, 924-925 [1983]; see People v Gomez, 192 AD2d 549, 550 [1993], lvdenied 82 NY2d 806 [1993]).
Nevertheless, we affirm the judgment because that error is harmless beyond a reasonabledoubt (see People v Chatman, 38AD3d 1282, 1283 [2007], lv denied 8 NY3d 983 [2007]; People vThompson, 295 AD2d 917, 918 [2002], lv denied 98 NY2d 772 [2002]; seegenerally People v Crimmins, 36 NY2d 230, 237 [1975]). The only statement made bydefendant after the administration of the incomplete Miranda warnings was his admissionthat he lived in the apartment in which he was arrested. Defendant was arrested inside theapartment, however, by officers executing a warrant for his arrest at that location, and he was theonly person present in the apartment at the time. Another officer was located by the rear of theapartment to prevent any escape attempt, and he observed someone throw a bag of crack cocainefrom a bedroom window as the apprehending officers approached the bedroom from inside theapartment. Immediately thereafter, defendant was apprehended as he left that bedroom. Indefendant's grand jury testimony, which was admitted in evidence at [*2]trial, he stated that he was the only person present in the apartmentwhen the officers entered. At trial, officers testified that the amount of crack cocaine possessedwas inconsistent with individual use, and that no paraphernalia for using crack cocaine was foundin the apartment. The evidence at trial further established that defendant was apprehendedleaving a bedroom in which a digital scale was discovered, and that such scales are commonlyused to package drugs for sale. In addition, defendant spontaneously stated, "this is[ ] nothing, it'smy first felony, I'll get probation," and he has not challenged the admissibility of that statement.Consequently, the evidence of defendant's guilt is overwhelming, and there is no reasonablepossibility that the erroneous admission of the statement at issue contributed to the conviction(see generally Crimmins, 36 NY2d at 237; People v Bastian, 294 AD2d 882, 884[2002], lv denied 98 NY2d 694 [2002]).
The sentence is not unduly harsh or severe. Present—Smith, J.P., Fahey, Peradotto,Lindley and Martoche, JJ.