| People v Nichols |
| 2014 NY Slip Op 00044 [113 AD3d 1122] |
| January 3, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Terrence L. Nichols, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (James J. Piampiano, J.),rendered April 28, 2011. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a weapon in the second degree and criminal possession of aweapon in the third degree.
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 criminal possession of a weapon in the second degree (Penal Law §265.03 [3]) and criminal possession of a weapon in the third degree (§ 265.02 [1]).We reject defendant's contention that County Court erred in refusing to suppress a gundiscovered by probation officers and a police officer during the search of defendant'sresidence, as well as defendant's subsequent statement to the police, on the ground thatneither he nor his wife validly consented to the search of the house where they resided.Rather, we conclude that the testimony at the suppression hearing established thatdefendant, who was on probation, and his wife both consented to the search (seePeople v Caldwell, 221 AD2d 972, 972 [1995], lv denied 87 NY2d 920[1996]).
Specifically, defendant contends that the search was coerced with respect to himbecause he had been placed in custody. That contention lacks merit. Although defendantwas placed in custody shortly after the arrival of the probation officers and the police athis home, a probation officer testified that defendant gave his consent to search the housebefore being placed in custody. In any event, we note that a defendant may consent to asearch even after he is placed in custody (see People v May, 100 AD3d 1411, 1412 [2012], lvdenied 20 NY3d 1063 [2013]). Here, the suppression hearing testimony establishedthat defendant's consent to search was obtained " 'without the use of any threats or othercoercive techniques' " (People vShaw, 8 AD3d 1106, 1107 [2004], lv denied 3 NY3d 681 [2004]).
Even assuming, arguendo, that defendant's consent to search was not valid, weconclude that the court properly determined that defendant's wife validly consented to thesearch (see Caldwell, 221 AD2d at 972). Indeed, the record establishes thatdefendant's wife was aware of [*2]the right to refuse toconsent to the search (see id.), inasmuch as she informed the police officer thatshe would not have allowed the search had she thought that there were anything illegal inthe house. Finally, to the extent that defendant contends that the court erred in creditingthe testimony of the prosecution witnesses over that of his wife, we reject thatcontention. " '[I]t is well settled that [t]he suppression court's credibility determinationsand choice between conflicting inferences to be drawn from the proof are granteddeference and will not be disturbed unless unsupported by the record' " (May,100 AD3d at 1412).
In light of our determination, we reject defendant's further contention that hisstatement to the police must be suppressed as fruit of the poisonous tree (see generally People v Sims,106 AD3d 1473, 1474 [2013], appeal dismissed 22 NY3d 992 [2013]). Present—Scudder, P.J., Centra, Carni, Sconiers andWhalen, JJ.