| People v Huff |
| 2015 NY Slip Op 08262 [133 AD3d 1223] |
| November 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDemetrius A. Huff, Appellant. |
Kathryn Friedman, Buffalo, for defendant-appellant.
Demetrius A. Huff, defendant-appellant pro se.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia,A.J.), rendered January 3, 2014. The judgment convicted defendant, upon a jury verdict,of murder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofmurder in the second degree (Penal Law § 125.25 [1]), defendant contendsthat Supreme Court erred in denying his motion to suppress physical evidence seizedfrom the attic of the home where he resided with his grandmother. We reject thatcontention. Following a hearing, the court credited the testimony of a detective that thegrandmother had voluntarily consented to the search. Although the detective was unableto obtain a written consent to the search, "[i]t is well settled that consent can beestablished by conduct" (Peoplev Sinzheimer, 15 AD3d 732, 734 [2005], lv denied 5 NY3d 794 [2005]).According to the detective who testified at the hearing, the grandmother, who had amaster's degree, was pleasant and cooperative, she let the detectives into the house, andshe led them directly to the attic and unlocked the door to the attic for them. Only afterthe inculpatory evidence was found did the grandmother become aggravated and refuseto sign the consent form. Although the grandmother testified that she let the detectivesinto her home only after they told her they had a search warrant, the testifying detectivedenied telling the grandmother that they had a search warrant.
The court credited the testimony of the detective, and " '[i]t is well settledthat [t]he suppression court's credibility determinations . . . are granteddeference and will not be disturbed unless unsupported by the record' " (People v May, 100 AD3d1411, 1412 [2012], lv denied 20 NY3d 1063 [2013]). Crediting suchtestimony, we conclude that the People met their burden of establishing " 'thatthe consent was in fact voluntarily given, and not the result of duress or coercion, expressor implied' by the actions of the law enforcement authorities" (People v Quagliata, 53 AD3d670, 671 [2008], lv denied 11 NY3d 834 [2008], quoting Schneckloth vBustamonte, 412 US 218, 248 [1973]). The grandmother manifested her consent tothe search by her willingness to cooperate and her conduct in leading the officers to theattic and unlocking the door thereto (see People v McCray, 96 AD3d 1480, 1481 [2012], lvdenied 19 NY3d 1104 [2012]; People v Allah, 54 AD3d 632, 632 [2008], lvdenied 12 NY3d 755 [2009]; Quagliata, 53 AD3d at 672; cf. People vMcFadden, 179 AD2d 1003, 1004 [1992], appeal dismissed 79 NY2d 996[1992]).
Defendant further contends that the court erred in refusing to suppress his statementsto the police. At the suppression hearing, a detective testified that defendant was read andwaived his Miranda rights before the initial interview. Although the actual cardcould not be located and thus was not presented at the hearing, the court credited thedetective's unrebutted testimony, and such a credibility determination is entitled to greatdeference (see People v Prochilo, 41 NY2d 759, 761 [1977]). "[T]he warningsgiven by this experienced [detective] were adequate and fully conveyed to defendant hisrights. No more is required" (People v Vega, 225 AD2d 890, 891 [1996], lvdenied 88 NY2d 943 [1996]).
We reject defendant's contention that his statements were not voluntarily givenbecause he was 17 years old at the time of the interview, allegedly suffered from alearning disability and was unaccompanied by his grandmother to the interview. "A courtgenerally must look to the totality of the circumstances to determine the voluntariness ofan inculpatory statement . . . 'The factors to be examined in determining thetotality of the circumstances surrounding a defendant's confession include the durationand conditions of detention, the attitude of the police toward the defendant, and the age,physical state, and mental state of the defendant' " (People v Brown, 113 AD3d785, 785 [2014], lv denied 23 NY3d 1018 [2014]; see People vKemp, 266 AD2d 887, 888 [1999], lv denied 94 NY2d 921 [2000]). In thiscase, defendant "was legally an adult . . . Thus, there was no requirementthat defendant's [guardian] be present during the police questioning" (People vLewis, 277 AD2d 1010, 1011 [2000], lv denied 96 NY2d 736 [2001]).Moreover, there was no evidence that defendant was isolated from his grandmother as aresult of "official deception or trickery" (People v Salaam, 83 NY2d 51, 55[1993]). Although defendant contends that he suffered from a learning disability, thegrandmother testified at the hearing that defendant was able to complete age-appropriateschool work. We thus conclude that "there is insufficient evidence in the record tosupport [defendant's] assertion that [he] had [a learning disability] or subnormalintelligence and, therefore, could not knowingly or intelligently waive his rights"(People v Herr, 203 AD2d 927, 928 [1994], affd 86 NY2d 638[1995]).
Defendant also challenges the voluntariness of the statement based on the seven-hourinterrogation that preceded his first statement. We conclude, however, that the durationof the interview did not render the resulting statement involuntary. Defendant was givenbreaks to use the bathroom and smoke cigarettes, and he was offered food and beverages(see People vClyburn-Dawson, 128 AD3d 1350, 1351 [2015]; People v Figueroa-Norse, 120AD3d 913, 914 [2014], lv denied 25 NY3d 1071 [2015]; People v Collins, 106 AD3d1544, 1545 [2013], lv denied 21 NY3d 1072 [2013]). We thus conclude"that the People proved beyond a reasonable doubt that defendant's statements werevoluntary" (Kemp, 266 AD2d at 888).
Contrary to defendant's further contention, we conclude that the court properlygranted the People's motion to vacate defendant's earlier plea of guilty to a reducedcharge of manslaughter in the first degree. In accordance with that earlier plea agreement,defendant had agreed to testify truthfully against the codefendant in exchange for beingpermitted to plead guilty to the reduced charge. After defendant entered his plea and wascalled to testify at the codefendant's trial, however, defendant denied all the facts that hehad previously admitted in his statements and plea colloquy. It is well settled that"[c]onditions agreed upon as part of a plea bargain are generally enforceable, unlessviolative of statute or public policy" (People v Hicks, 98 NY2d 185, 188 [2002]).We reject defendant's contention that he substantially complied with the terms of the pleaagreement. "Whether a defendant has in fact performed his end of a plea bargain is nottested by the defendant's subjective interpretation but rather[,] [it is tested] by anobjective interpretation of the agreement" (People v Cuadrado, 161 AD2d 232,233 [1990], lv denied 76 NY2d 855 [1990]) and, here, there can be no legitimatedispute that defendant failed to perform his end of the bargain when he refused to testifytruthfully at the codefendant's trial (see e.g. People v Brennan, 62 AD3d 1167, 1168 [2009],lv denied 13 NY3d 794 [2009]; People v Dunton, 10 AD3d 808, 808 [2004], lvdenied 4 NY3d 830 [2005]; Cuadrado, 161 AD2d at 233). Where, as here, adefendant has materially breached the plea agreement, the court "ha[s] the authority tovacate the [defendant's] guilty plea" (Matter of Klein v Cowhey, 161 AD2d 643,643 [1990]; see People v Aponte, 212 AD2d 157, 161 [1995]), and the mattermay proceed to trial on the original indictment (see generally People v Bartley, 47NY2d 965, 966 [1979]).
Contrary to defendant's contention, the testimony of the jailhouse informant was notincredible as a matter of law (see People v Carr, 99 AD3d 1173, 1174 [2012], lvdenied 20 NY3d 1010 [2013]), i.e., "manifestly untrue, physically impossible,contrary to experience, or self-contradictory" (People v Ponzo, 111 AD3d 1347, 1348 [2013] [internalquotation marks omitted]; seePeople v Errington, 121 AD3d 1553, 1555 [2014], lv denied 25 NY3d1163 [2015]).
Defendant contends that the evidence is legally insufficient to support the convictionof intentional murder. To the extent that defendant contends that there was no evidenceof his intent to kill the victim and no evidence that he inflicted the fatal injuries, thosecontentions have not been preserved for our review (see People v Gray, 86 NY2d10, 19 [1995]; People vBroadnax, 52 AD3d 1306, 1307 [2008], lv denied 11 NY3d 830[2008]). In any event, those contentions lack merit. Here, defendant's intent to kill maybe inferred from the evidence that he stabbed the victim 10 times and held the victimdown while others stabbed him (see People v Pearson, 93 AD3d 1343, 1343 [2012], lvdenied 19 NY3d 866 [2012]; People v Moore, 184 AD2d 1042, 1042 [1992],lv denied 80 NY2d 907 [1992]). Although there is no evidence that defendantinflicted the fatal stab wounds, he was charged as an accessory, and the jury wasinstructed on accessorial liability. As we noted in the case of the codefendant (Peoplev Nafi, 132 AD3d 1301 [2015]), "[a]ccessorial liability requires only that defendant,acting with the mental culpability required for the commission of the crime, intentionallyaid another in the conduct constituting the offense" (People v Chapman, 30 AD3d 1000, 1001 [2006], lvdenied 7 NY3d 811 [2006] [internal quotation marks omitted]).
With respect to defendant's remaining challenges to the sufficiency of the evidence,we conclude that the evidence, when viewed in the light most favorable to the People, islegally sufficient to support the conviction (see People v Contes, 60 NY2d 620,621 [1983]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Moreover, viewing the evidence in light of the elements of the crime as charged to thejury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that an acquittal would havebeen unreasonable, and thus that the verdict is not against the weight of the evidence(see id. at 348; Bleakley, 69 NY2d at 495). Present—Scudder, P.J.,Smith, Carni, Lindley and Valentino, JJ.