| People v Britton |
| 2014 NY Slip Op 00025 [113 AD3d 1101] |
| January 3, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Brian F. Britton, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Robert C. Jeffries of counsel),for respondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.),rendered October 6, 2010. The judgment convicted defendant, upon his plea of guilty, ofattempted kidnapping in the second degree and endangering the welfare of a child (twocounts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of, inter alia, attempted kidnapping in the second degree (Penal Law§§ 110.00, 135.20). Defendant's contention that he was unlawfully arrestedin his home without an arrest warrant in violation of Payton v New York (445US 573 [1980]) is unpreserved for our review inasmuch as he failed to raise it beforeCounty Court (see People v Smith, 55 NY2d 888, 890 [1982]; People vLong, 195 AD2d 610, 610 [1993], lv denied 82 NY2d 756 [1993];People v Sneed, 191 AD2d 969, 969-970 [1993]), and we decline to exercise ourpower to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]).
We reject defendant's contention that the search of his apartment was unlawfulbecause the police lacked a search warrant or valid consent to search, and thus that thecourt erred in refusing to suppress the rifle obtained by the police during the search ofthis apartment. The People met their burden of establishing that the police reasonablybelieved that defendant's wife, the complainant, had the requisite authority to consent tothe search of the apartment (see People v Gonzalez, 88 NY2d 289, 295 [1996];People v Littleton, 62AD3d 1267, 1269 [2009], lv denied 12 NY3d 926 [2009]). The evidence atthe suppression hearing established that police officers responded to a report of adomestic dispute possibly involving a gun at defendant's apartment. As the policeapproached the door of the apartment, they heard a male yelling and a female crying.After defendant was removed from the apartment, the complainant permitted the policeto enter the apartment and informed them that she lived there. The complainant then toldthe police that defendant had threatened her with a gun and directed the officers to thelocation of the rifle. The rifle was located in a closet inside the doorway to the apartment.The complainant consented to the seizure of the rifle and, indeed, asked the police toremove it for her safety. Thus, "the record establishes that the searching officer[s] reliedin good faith on the apparent authority of [the complainant] to consent to the search, andthe circumstances reasonably indicated that [she] had the requisite authority to consent tothe search" (People vFontaine, 27 AD3d 1144, 1145 [2006], lv denied 6 NY3d 847 [2006];see People v Smith, 101AD3d 1794, 1795 [2012], lv denied 20 NY3d 1104 [2013]; see generally People v Scott,31 AD3d 1165, 1165-1166 [2006], lv denied 7 NY3d 851 [2006]).
Finally, defendant further contends that the court erred in refusing to suppress therifle seized from his apartment as the result of an arrest that was made without probablecause. Although defendant moved to suppress the rifle on that ground, he abandoned itby expressly limiting the scope of the suppression hearing to the legality of the search ofhis apartment and the seizure of the rifle and, furthermore, by failing to seek a ruling onthat part of his omnibus motion (see generally People v Adams, 90 AD3d 1508, 1509[2011], lv denied 18 NY3d 954 [2012]; People v Adger, 83 AD3d 1590, 1591 [2011], lvdenied 17 NY3d 857 [2011]; People v Nix, 78 AD3d 1698, 1698-1699 [2010], lvdenied 16 NY3d 799 [2011], cert denied 565 US —, 132 S Ct 157[2011]; People v Bigelow,68 AD3d 1127, 1128 [2009], lv denied 14 NY3d 797 [2010]).Present—Centra, J.P., Peradotto, Carni, Sconiers and Whalen, JJ.