| People v Yoneyama |
| 2015 NY Slip Op 04566 [128 AD3d 616] |
| May 28, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Shun Yoneyama, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot ofcounsel), and DLA Piper (US), New York (Andrew J. Rodgers of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ross D. Mazer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), renderedAugust 21, 2012, convicting defendant, upon his plea of guilty, of criminal possession ofa weapon in the second degree and criminal possession of a controlled substance in thesecond degree, and sentencing him to concurrent terms of eight years, unanimouslyaffirmed.
The court properly denied defendant's suppression motion. There is no basis fordisturbing the court's credibility determinations. The totality of the circumstancesestablished that defendant voluntarily consented to the search of his bedroom (seePeople v Gonzalez, 39 NY2d 122 [1976]).
Defendant, who had prior contacts with the criminal justice system, provided hisconsent to search both orally and in writing, and he acknowledged that he had beennotified of his right to refuse consent (see People v Brunson, 73 AD3d 432 [1st Dept 2010], lvdenied 15 NY3d 772 [2010]). Although a large number of officers were presentwhen defendant's car was stopped on the highway, and although defendant was initiallyhandcuffed, the officers did not all remain with defendant throughout the encounter, andthe handcuffs were removed at the time defendant consented to the search. Furthermore,defendant was very cooperative with the police, not merely in terms of lack of resistance,but in candidly disclosing the presence of drugs in his car and apartment (see People v Quagliata, 53AD3d 670 [2d Dept 2008], lv denied 11 NY3d 834 [2008]; see also People v Mercado, 120AD3d 441 [1st Dept 2014], affd 25 NY3d 936 [2015]).
Defendant's consent was not invalidated by an investigator's advice to defendant thatif he did not consent to the search, the police could get a warrant, and that thecircumstances of the execution of the warrant could lead to the arrest of defendant'sfather, who also lived in the apartment. The investigator had valid legal and factualgrounds for making these statements, which were not threats to arrest defendant's father,but warnings of a possible, less favorable alternative scenario (see People vLaDuke, 206 AD2d 859, 860 [4th Dept 1994]).
We perceive no basis for reducing the sentence. Concur—Andrias, J.P.,Moskowitz, DeGrasse, Gische and Kapnick, JJ.