| People v Grillo |
| 2015 NY Slip Op 03880 [128 AD3d 1103] |
| May 7, 2015 |
| Appellate Division, Third Department |
[*1](May 7, 2015)
| The People of the State of New York, Respondent, vRichard M. Grillo, Appellant. |
Gail B. Rubenfeld, Monticello, for appellant.
James R. Farrell, District Attorney, Monticello (Robert Zangla of counsel), forrespondent.
Garry, J.P. Appeal from a judgment of the County Court of Sullivan County(LaBuda, J.), rendered March 1, 2012, upon a verdict convicting defendant of the crimesof criminal possession of stolen property in the third degree and criminal possession ofstolen property in the fifth degree (two counts).
Defendant and his girlfriend, Kelly Helms, were charged in a multicount indictmentwith numerous crimes arising out of their alleged involvement in a string of burglaries inSullivan County. As relevant here, count 10 of the indictment charged both defendantand Helms with criminal possession of stolen property in the third degree relating to theiralleged possession of jewelry stolen from the home of one victim (hereinafter the victim).Counts 11 and 12 of the indictment, as amended, charged
defendant and Helms with criminal possession of stolen property in the fifth degreerelating to their alleged possession of property stolen from the homes of two additionalvictims. The property allegedly possessed pursuant to counts 10 through 12 wasrecovered from Helms' residence during a consent search by police. Count 13 of theindictment charged Helms alone with criminal possession of stolen property in the thirddegree pertaining to additional pieces of jewelry that were recovered during theexecution of a search warrant following the initial consent search.
The cases against defendant and Helms initially proceeded to trial jointly. CountyCourt granted Helms' mid-trial motion for severance after determining that their defensestrategies were incompatible. The case against defendant continued thereafter, and thejury ultimately returned a [*2]verdict finding him guiltyon counts 10, 11 and 12 of the indictment. County Court then sentenced him, as apersistent felony offender, to a prison term of 25 years to life on his conviction undercount 10, and concurrent one-year terms of incarceration on each of the remainingconvictions. Defendant appeals.
We reject defendant's argument that County Court erred in denying his motion tosuppress evidence obtained from the consent search of the residence. Testimony at thesuppression hearing established that two detectives visited the residence after the victim'shusband suggested that defendant may have been involved in the burglary. Thedetectives knocked on the door of the residence and Helms answered and allowed theminside. The detectives then asked to speak to defendant, who subsequently emerged froma back bedroom. Defendant indicated to the detectives that he did not wish to speak tothem and that he was merely a guest in the home. The detectives then turned theirattention to Helms and requested permission to look around the house. Defendant statedto Helms, "Don't do it, don't . . . make it easy for them." The detectives thenasked Helms to accompany them outside and again asked for permission to look aroundthe home. Once outside, Helms gave verbal consent to allow the detectives to search thebedroom that she shared with defendant, but refused to sign a written consent form.Upon Helms and the detectives reentering the residence, defendant became agitated andagain stated to Helms, "[D]on't . . . do it, don't make it easy, make them geta warrant." He then asked a detective if he was free to leave, and the detective respondedthat he was. Defendant left the residence and Helms subsequently led the detective into abedroom where numerous pieces of stolen property were recovered.
Even in the absence of a warrant, police may lawfully search a residence where aninhabitant with apparent authority to consent to the search freely and voluntarily does so(see People v Edwards, 124AD3d 988, 989 [2015]; People v Dean, 46 AD3d 1229, 1231 [2007], lvdenied 10 NY3d 763 [2008]). However, where one resident consents to a search andanother refuses, "[the] warrantless search of [the] shared dwelling for evidence over theexpress refusal of consent by a physically present resident cannot be justified asreasonable as to him [or her] on the basis of consent given to the police by anotherresident" (Georgia v Randolph, 547 US 103, 120 [2006]; cf. People vCosme, 48 NY2d 286, 292 [1979]). Notably, however, the objecting resident'srefusal operates to counteract the other resident's consent only so long as the objectingresident is physically present on the premises (see Fernandez v California, 571US &mdash, 134 S Ct 1126, 1136 [2014]).
Here, the testimony before County Court established that Helms freely andvoluntarily provided consent to search one bedroom of the residence. Althoughdefendant had repeatedly and strongly advised Helms not to consent in the presence ofthe detectives, he then left the premises of his own accord (see Georgia vRandolph, 547 US at 121-122; People v Watson, 101 AD3d 913, 914-915 [2012]). Thus,even were we to find that defendant had communicated directly to the detectives andexpressly refused consent to search, any such refusal was effectively withdrawn whendefendant voluntarily departed the residence prior to the commencement of the search(see Fernandez v California, 134 S Ct at 1136). Accordingly, County Court didnot err in denying defendant's motion to suppress the fruits of the search.
Defendant further contends that his conviction on count 10 of criminal possession ofstolen property in the third degree was against the weight of the evidence.[FN*] Defendant's sole [*3]contention is that the People failed to prove that the valueof the stolen property exceeded $3,000 (see Penal Law § 165.50).There were 33 pieces of jewelry introduced that were relevant to this charge againstdefendant, and over 100 additional pieces of jewelry that were introduced that relatedonly to the charges against Helms. As evidence that the value of the jewelry met thestatutory threshold, the People attached price tags to each piece of jewelry based on thevictim's research into the item's value. However, following severance of the case againstHelms, neither County Court nor the People informed the jury that, when reaching itsverdict on count 10, it could only consider 33 pieces of jewelry out of the many piecesthat had been introduced. The court provided no instructions in this regard, andstatements by the prosecutor during summation invited confusion by implying that thejury could consider all of the jewelry. The cumulative and confusing manner in which theevidence was presented made it a near impossibility that the jury would be able to"reasonably infer, rather than merely speculate[,] that the value of the stolen itemsexceeded the statutory threshold" (People v Loomis, 56 AD3d 1046, 1047 [2008] [internalquotation marks, brackets and citation omitted]; see People v Holley, 237 AD2d642, 644 [1997]). Thus, we cannot find that the weight of the evidence supports thisconviction. Nevertheless, defendant concedes, and we agree, that the evidence supports aconviction for the lesser included offense of criminal possession of stolen property in thefifth degree (see Penal Law § 165.40); therefore, we reducedefendant's conviction accordingly (see CPL 470.15 [2] [a]; People v Nicholas, 106 AD3d1026, 1027 [2013], lv denied 22 NY3d 1089 [2014]; People v Oates, 33 AD3d823, 823-824 [2006], lv denied 8 NY3d 883 [2007]; see also People v Grice, 84AD3d 1419, 1420 [2011], lv denied 17 NY3d 806 [2011]).
In light of this disposition, we need not address defendant's further contentions.
Egan Jr., Lynch and Clark, JJ., concur. Ordered that the judgment is modified, on thelaw, by reducing defendant's conviction of criminal possession of stolen property in thethird degree under count 10 of the indictment to criminal possession of stolen property inthe fifth degree; vacate the sentence imposed on said conviction and matter remitted tothe County Court of Sullivan County for resentencing; and, as so modified,affirmed.
Footnote *:Defendant's argumentthat there was legally insufficient evidence to support the conviction on count 10 isunpreserved, as defendant failed to make a trial motion to dismiss this charge (see People v Olsen, 124 AD3d1084, 1085 n [2015]). Nevertheless, our weight of the evidence analysis requires usto ensure that each element of the crime was established (see People v Lancaster, 121AD3d 1301, 1302 [2014], lv denied 24 NY3d 1121 [2015]).