| People v Holley |
| 2017 NY Slip Op 02222 [148 AD3d 1605] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v DwayneHolley, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (Daniel J. Punch of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.),rendered October 4, 2012. The judgment convicted defendant, upon a nonjury verdict, of robberyin the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict ofrobbery in the first degree (Penal Law § 160.15 [4]). Defendant contends thatSupreme Court erred in refusing to suppress evidence seized from his girlfriend's apartment,where he spent many nights, because his girlfriend's consent to search her apartment was notvoluntarily given. We reject that contention. Defendant's girlfriend gave both oral and writtenconsent to search her apartment and, based on the totality of the circumstances, we conclude thatthe consent was voluntary and not the product of coercion (see People v Nance, 132 AD3d 1389, 1390 [2015], lvdenied 26 NY3d 1091 [2015]; People v Caldwell, 221 AD2d 972, 972-973 [1995],lv denied 87 NY2d 920 [1996]). Indeed, the record establishes that "the atmosphere wasnot one of 'overbearing official pressure' " (People v Oldacre, 53 AD3d 675, 677 [2008], quoting People vGonzalez, 39 NY2d 122, 128 [1976]). We further reject defendant's contention that thepolice improperly detained him in order to prevent him from objecting to the search of theapartment (see Nance, 132 AD3d at 1389). The police suspected defendant of an armedbank robbery that had occurred earlier that day, thus giving the police a reasonable basis fordetaining him for officer safety (see id. at 1389-1390).
Defendant's contention that there was a Payton violation is likewise without merit." 'Where a person with ostensible authority consents to police presence on the premises,either explicitly or tacitly, the right to be secure against warrantless arrests in private premises asexpressed in Payton v New York (445 US 573 [1980]) is not violated' " (People v Bunce, 141 AD3d 536,537 [2016], lv denied 28 NY3d 969 [2016]; see People v Kozikowski, 23 AD3d 990, 990 [2005], lvdenied 6 NY3d 755 [2005]). Here, the conduct of defendant's girlfriend when the policearrived at her apartment established that she consented to the police entering her home (see People v Richardson, 143 AD3d1252, 1254 [2016]; People vSigl, 107 AD3d 1585, 1586-1587 [2013], lv denied 21 NY3d 1077 [2013]).Defendant's contention that the police lacked probable cause to arrest him is not preserved for ourreview (see Nance, 132 AD3d at 1390), and is without merit in any event (see Peoplev Reyes, 191 AD2d 467, 468 [1993]).
Contrary to defendant's contention, the evidence is legally sufficient to establish that he wasthe perpetrator of the robbery (see generally People v Bleakley, 69 NY2d 490, 495[1987]). The bank teller identified defendant as the perpetrator, and that identification wasbuttressed by " 'a compelling chain of circumstantial evidence that had no reasonableexplanation except that defendant was . . . the perpetrator[ ]' " (People v Daniels, 125 AD3d 1432,1433 [2015], lv denied 25 NY3d 1071 [2015], denied reconsideration 26 NY3d928 [2015]). Viewing the evidence in light of the [*2]elements ofthe crime in this nonjury trial (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is notagainst the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
We reject defendant's contention that the court erred in refusing to suppress his statements asinvoluntarily made. The police officers' reference to a surveillance video, while deceptive, "wasnot so fundamentally unfair as to deny defendant due process," nor was it "accompanied by apromise or threat likely to produce a false confession" (People v Dickson, 260 AD2d 931,932 [1999], lv denied 93 NY2d 1017 [1999], citing People v Tarsia, 50 NY2d 1,11 [1980]; see People v Lewis, 93AD3d 1264, 1265-1266 [2012], appeal dismissed 19 NY3d 963 [2012]). Thesentence, which was close to the minimum, is not unduly harsh or severe.Present—Whalen, P.J., Centra, Peradotto, DeJoseph and Scudder, JJ.