| People v Sigl |
| 2013 NY Slip Op 04508 [107 AD3d 1585] |
| June 14, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vStephen E. Sigl, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Erin Tubbs of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.),rendered November 10, 2008. The judgment convicted defendant, upon a jury verdict, ofburglary in the first degree and sodomy in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofburglary in the first degree (Penal Law § 140.30 [3]) and sodomy in the firstdegree (former § 130.50 [1]), defendant contends that County Court erred inrefusing to dismiss the indictment as time-barred. We reject that contention. Contrary todefendant's contention, the court properly applied CPL 30.10 (4) (a) (ii), which tolls thestatute of limitations where a defendant's "whereabouts were continuously unknown andcontinuously unascertainable by the exercise of reasonable diligence." That statuteapplies where, as here, "the police are unable to identify the perpetrator of a crime despitethe exercise of reasonable diligence or have identified the perpetrator but cannot find him[or her] after a diligent investigation" (People v Quinto, 18 NY3d 409, 419 [2012]). Here, "[t]herecord supports the court's determination that the identity of defendant as the sexualassailant, and thus his whereabouts, were not ascertainable by diligent efforts" before2008, when the State DNA Indexing System matched the DNA profile from the semenfound on the victim's night shirt with DNA obtained from defendant in conjunction withan unrelated 2007 conviction (People v Jackson, 21 AD3d 1355, 1356 [2005], lvdenied 6 NY3d 777 [2006], reconsideration denied 7 NY3d 757 [2006]).
Contrary to defendant's further contention, the court properly refused to suppress thestatements he made to the police. Defendant contends, inter alia, that the statementsshould have been suppressed on the ground that they were the product of an arrest madeinside his home without a warrant in violation of his rights as set forth in Payton vNew York (445 US 573 [1980]). We agree with the court that Payton doesnot apply because defendant was not arrested inside his apartment but, rather, hevoluntarily agreed to accompany the officers to the police station. Even assuming,arguendo, that there was a warrantless arrest of defendant in his apartment, we note thatit is well settled that "tacit consent by a person with apparent authority . . .[is] sufficient to obviate any possible violation of the Payton rule" (People vSchof, 136 AD2d 578, 579 [1988], lv denied [*2]71 NY2d 1033 [1988]; see generally Schneckloth vBustamonte, 412 US 218, 219 [1973]). Here, the People established that the policeofficers entered the apartment with the consent of defendant's father (see People v Johnson, 46AD3d 276, 276-277 [2007], lv denied 10 NY3d 865 [2008]; People v Barnhill, 34 AD3d933, 934 [2006], lv denied 8 NY3d 843 [2007]; People v Smith, 239AD2d 219, 220-221 [1997], lv denied 90 NY2d 911 [1997]). Although "thepolice may not have received express permission to enter the premises, [the] gesture [ofdefendant's father] of opening the door, leaving it wide open, and then walking awayfrom it could certainly be interpreted by the police to consist of tacit approval for them toenter" (People v Brown, 234 AD2d 211, 213 [1996], affd 91 NY2d 854[1997]).
Finally, viewing the evidence in light of the elements of the crimes as charged to thejury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). "Although a different result would not have been unreasonable, the jury was inthe best position to assess the credibility of the witnesses and, on this record, it cannot besaid that the jury failed to give the evidence the weight it should be accorded" (People v Orta, 12 AD3d1147, 1147 [2004], lv denied 4 NY3d 801 [2005]). Present—Smith,J.P., Fahey, Carni, Valentino and Whalen, JJ.