| People v Jackson |
| 2013 NY Slip Op 02414 [105 AD3d 866] |
| April 10, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Robert Jackson, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J.Twersky, and Matthew Kalinowski of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(D'Emic, J.), rendered July 20, 2009, convicting him of attempted criminal possession ofa weapon in the third degree, upon his plea of guilty, and imposing sentence. The appealbrings up for review the denial, after a hearing (Joel Goldberg, J.), of those branches ofthe defendant's omnibus motion which were to suppress physical evidence and hisstatements to law enforcement officials.
Ordered that the judgment is affirmed.
On the evening of April 1, 2008, the defendant's former girlfriend met with adetective to file a robbery complaint against the defendant. She also told him that thedefendant sold marijuana, which he packaged at his parents' apartment, and possessed afirearm. Thereafter, the detective commenced an investigation. On the morning of April3, 2008, the former girlfriend called the precinct to report that the defendant was standingat that moment on the southeast corner of Loring Avenue and Elderts Lane. Thedetective was out of the office at that time, so the detective's partner (hereinafter thepartner) took her call. Within minutes, the partner arrived at the corner she had namedand found the defendant, who met the former girlfriend's general physical descriptionand identified himself as Robert Jackson, the name the former girlfriend had provided tothe police.
At the police station, about an hour later, the defendant waived his rights and made awritten statement admitting to the robbery. About a half an hour after that, the defendantmade additional statements admitting that he had marijuana in a shoe box by the couch aswell as a gun at his parents' apartment. The police went to the apartment and obtained thewritten consent of the defendant's father to search the defendant's belongings. In a shoebox located where the defendant said it would be, the police found marijuana, a scale,and ziploc bags. In a gym bag on the balcony, they found a revolver. About an hour or anhour and a half later, the police returned to the precinct and confronted the defendantwith the gun. The defendant made an additional oral statement admitting to possession ofthe marijuana and a written statement admitting to possession of the gun.
Initially, contrary to the People's contention, the defendant did not validly waive hisright to appeal (see People vBradshaw, 18 NY3d 257, 265 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Foster, 87 AD3d299, 303 [2011]). However, the hearing court properly denied those branches [*2]of the defendant's omnibus motion which were to suppressphysical evidence and his statements to law enforcement officials as fruits of an unlawfularrest. Probable cause is established absent materially impeaching circumstances, where,as here, "the victim of an offense communicates to the arresting officer informationaffording a credible ground for believing the offense was committed and identifies theaccused as the perpetrator" (People v Read, 74 AD3d 1245, 1246 [2010]; seePeople v Gonzalez, 138 AD2d 622, 623 [1988]). The defendant's contention that thePeople failed to establish the reliability and basis of the complainant's statements to thearresting officer is unpreserved for appellate review, since the defendant failed to raisethis specific argument in support of suppression before the hearing court (seeCPL 470.05 [2]; People vNadal, 57 AD3d 574, 574-575 [2008]). In any event, it is without merit.Contrary to the defendant's contention, the partner testified at the hearing that he wasfamiliar with the underlying allegations of the complainant's robbery claim and the natureof her relationship with the defendant, despite her having relayed these details to thedetective. Even assuming that the partner had limited firsthand knowledge of theseunderlying details, under the fellow officer rule, his awareness that the detective haddetermined that there was probable cause to believe that the defendant had committed therobbery was sufficient (see People v Garcia, 284 AD2d 479, 481 [2001]). As tothe complainant's report to the partner of where the perpetrator could be found, since shewas an identified victim, the reliability and basis of her information is presumed (seePeople v Adams, 224 AD2d 703, 704 [1996]; People v Boykin, 187 AD2d661, 662 [1992]). Since a man meeting the general physical description provided by thecomplainant was found on the specific street corner she named within minutes of her calland confirmed that he was Robert Jackson, under all of the circumstances, there wasprobable cause to arrest the defendant (see People v Rogers, 71 AD3d 457, 457-458 [2010]; People v Velez, 59 AD3d572, 574-575 [2009]; People v Munoz, 286 AD2d 448 [2001]; People vDiaz, 210 AD2d 248 [1994]). That the partner handcuffed the defendant beforeasking his name does not invalidate the arrest, since the partner confirmed thedefendant's identity immediately after he was handcuffed (see People v Williams,239 AD2d 368 [1997]). In any event, the defendant's later admissions relating to themarijuana and firearm were the product of his being confronted with the complainant'sindependently obtained statement that he possessed such contraband as well as his clearwillingness to speak with the police, not the result of the initial detention (see Peoplev Conyers, 68 NY2d 982, 983 [1986]; People v Rogers, 52 NY2d 527, 534[1981]).
The hearing court also properly rejected the defendant's contention that hisinculpatory statements made to law enforcement officials were involuntary. "[I]t is not animproper tactic for police to capitalize on a defendant's sense of shame or reluctance toinvolve his family in a pending investigation absent circumstances which create asubstantial risk that a defendant might falsely incriminate himself" (People vMateo, 2 NY3d 383, 415-416 [2004], cert denied 542 US 946 [2004]).Contrary to the defendant's contention, the partner's statement concerning the possibleconsequences to the defendant's family were narcotics recovered from their apartmentpursuant to a search warrant was not a coercive threat, since it was not untrue (see People v Sanabria, 52AD3d 743, 745 [2008]; People v Setless, 213 AD2d 900 [1995]).
The defendant's contention that the police should have administered Mirandawarnings (see Miranda v Arizona, 384 US 436 [1966]) a second time is similarlywithout merit, since he had validly waived these rights less than an hour before, andremained continuously in custody in the same interview room (see People v Martin, 68 AD3d1015, 1016 [2009]; Peoplev Pegues, 59 AD3d 570, 571 [2009]; People v Glinsman, 107 AD2d710 [1985]).
The hearing court also properly denied suppression of the physical evidence found inhis parents' apartment. " '[T]he police may lawfully conduct a warrantless search whenthey have obtained the voluntary consent of a party who possesses the requisite degree ofauthority and control over the premises or personal property in question' " (People v Watson, 101 AD3d913, 914 [2012], quoting People v Cosme, 48 NY2d 286, 290 [1979]; see People v Bran, 82 AD3d1000 [2011]). The record supports the court's determination that the defendant'sfather voluntarily gave the police permission to enter the apartment and voluntarilysigned a consent form authorizing a search of the defendant's belongings therein (see People v Kelly, 58 AD3d868, 869 [2009]; People vForino, 39 AD3d 664, 665 [2007]; People v Fregosi, 258 AD2d 259,260 [1999]). The People further established that the father had authority to consent to thesearch, since there was no indication that the defendant had exclusive access to theplainly visible and easily opened containers in the common areas of the apartment(see People v Kelly, 58 AD3d at 869; People v Daniels, 22 AD3d 678, 679 [2005]; People vWilliams, 278 AD2d 150, 151 [2000]). [*3]Accordingly, it was reasonable for the police to rely on thefather's apparent authority to consent to the search (see People v Kelly, 58 AD3dat 869; People v Williams, 278 AD2d at 151). Eng, P.J., Dickerson, Hall andLott, JJ., concur.