| People v Mills |
| 2016 NY Slip Op 02221 [137 AD3d 1690] |
| March 25, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Anthony Mills, Appellant. |
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Lowry of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), renderedMay 12, 2014. The judgment convicted defendant, upon a nonjury verdict, of burglary inthe second degree (four counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him after a nonjury trial offour counts of burglary in the second degree (Penal Law § 140.25 [2]),defendant challenges the validity of his waiver of a jury trial. Defendant failed topreserve that challenge for our review (see People v Hailey, 128 AD3d 1415, 1415-1416 [2015],lv denied 26 NY3d 929 [2015]; see generally People v Padro, 75 NY2d820, 821 [1990], rearg denied 75 NY2d 1005 [1990], rearg dismissed 81NY2d 989 [1993]). In any event, we conclude that defendant's challenge is without meritinasmuch as " 'the record establishes that defendant's waiver was knowing,voluntary and intelligent' " (Hailey, 128 AD3d at 1416; see People v Moran, 87 AD3d1312, 1312 [2011], lv denied 19 NY3d 976 [2012]).
Defendant contends that County Court erred in refusing to suppress evidenceobtained pursuant to an arrest of defendant because the police lacked probable cause toarrest him. We reject defendant's contention, inasmuch as "the police had probable causeto arrest him on the basis of statements [of his accomplice] implicating him in the crime"(People v Luciano, 43AD3d 1183, 1183 [2007], lv denied 9 NY3d 991 [2007]; see People vBerzups, 49 NY2d 417, 426-427 [1980]; People v Fulton, 133 AD3d 1194, 1195 [2015], lvdenied 26 NY3d 1109 [2016]). We also reject defendant's contention that evidencerecovered during a search of his residence should have been suppressed on the groundthat his fiancée did not consent to the search. We conclude that the People mettheir burden of establishing at the suppression hearing that the police reasonably believedthat defendant's fiancée had the authority to consent to the search of the residence(see People v Adams, 53 NY2d 1, 8 [1981], rearg denied 54 NY2d 832[1981], cert denied 454 US 854 [1981]; People v Plumley, 111 AD3d 1418, 1419 [2013], lvdenied 22 NY3d 1140 [2014]), and that she voluntarily consented to the search(see generally People v Gonzalez, 39 NY2d 122, 128 [1976]; People v May, 100 AD3d1411, 1412 [2012], lv denied 20 NY3d 1063 [2013]). The testimony ofdefendant's fiancée at the suppression hearing that she did not voluntarily consentto the search raised an issue of credibility that the court was entitled to resolve againstdefendant (see generally People v Prochilo, 41 NY2d 759, 761 [1977]; People v Twillie, 28 AD3d1236, 1237 [2006], lv denied 7 NY3d 795 [2006]).
We reject defendant's further contention that the testimony of his accomplice was notsufficiently corroborated and thus that the conviction is not supported by legallysufficient evidence. The record establishes that the People presented sufficient evidenceto satisfy the corroboration requirement, including, inter alia, evidence that several itemsstolen during the burglaries were found in defendant's residence (see CPL 60.22[1]; People v Reome, 15NY3d 188, 191-192 [2010]; People v Cortez, 81 AD3d 742, 742-743 [2011], lvdenied 16 NY3d 894 [2011]). Contrary to defendant's contention, viewing theevidence in light of the elements of the crime of burglary in [*2]the second degree in this nonjury trial (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Contrary to defendant's further contention that corrective action is required becausethe court failed to specify whether the sentences would run consecutively orconcurrently, the record establishes that the court sentenced defendant to consecutiveterms of incarceration for the first and second counts of burglary in the second degree,and that the sentences for the third and fourth counts would run concurrently. Finally, thesentence is not unduly harsh or severe. Present—Smith, J.P., Peradotto, Nemoyer,Curran and Scudder, JJ.