| People v Colon |
| 2017 NY Slip Op 05343 [151 AD3d 1915] |
| June 30, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v BryanColon, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (Daniel J. Punch of counsel), for respondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), renderedDecember 9, 2014. The judgment convicted defendant, upon his plea of guilty, of burglary in thesecond degree (six counts).
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,the plea is vacated, and the matter is remitted to Erie County Court for further proceedings on theindictment.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofsix counts of burglary in the second degree (Penal Law § 140.25 [2]). The chargesarose in part from home burglaries in Elma and Grand Island. The grand jury charged defendantby indictment with six counts of burglary in the second degree. Thereafter, defendant made anomnibus motion requesting, inter alia, that County Court dismiss the indictment on the groundthat the evidence presented to the grand jury was insufficient. Defendant also sought to suppressphysical evidence seized upon an allegedly unlawful search and his statements to the police,which he alleged were made involuntarily. After reviewing the grand jury minutes in camera, thecourt issued a decision and order concluding that the evidence before the grand jury was legallysufficient and denying that part of the motion seeking dismissal of the indictment. With respectto that part of the motion seeking suppression, the court convened a Huntley/Mapphearing, heard testimony from, inter alia, three Erie County Sheriff's deputies, and ultimatelydenied that part of the motion.
We reject defendant's contention that the court erred in refusing to suppress physicalevidence and statements on the ground that the police lacked probable cause to arrest him for theElma burglary. Contrary to defendant's contention, the court properly concluded that the deputieshad probable cause for his arrest on October 3, 2012. In determining whether there was probablecause for an arrest, "the basis for such a belief must not only be reasonable, but it must appear tobe at least more probable than not that a crime has taken place and that the one arrested is itsperpetrator" (People v Carrasquillo, 54 NY2d 248, 254 [1981]; see People v Hightower, 39 AD3d1247, 1248 [2007], lv denied 9 NY3d 845 [2007]).
The testimony of the deputies established that an eyewitness spotted a suspicious, red vehiclewith a particular license plate number in the vicinity of the Elma burglary. The description of thedriver of that vehicle matched defendant, and the vehicle's license plate number was traced to arelative of defendant's girlfriend, who told the deputies that she rented the vehicle for defendant'suse. In addition, defendant's girlfriend told the deputies that defendant was not home at the timeof the Elma burglary. When the deputies attempted to speak to defendant later that night, he fled.Shortly thereafter, they observed Eric Rivera driving a dark van away from defendant's apartmentcomplex, with a man in the passenger seat. Within days, an eyewitness observed an identical vanin the vicinity of the Grand Island burglary. That [*2]eyewitnessspoke to a man near the van and positively identified the man as defendant. The telephone in thevictim's home was used to place multiple calls to telephone numbers linked to defendant and toRivera. Based on that testimony, the court properly concluded that it was "more probable thannot" that defendant had perpetrated the Elma burglary (Carrasquillo, 54 NY2d at254).
Defendant further contends that the prosecutor failed in his duty to correct allegedly falsetestimony given by a witness. In particular, defendant contends that one of the deputies testifiedthat he developed defendant as a suspect in the Elma burglary based on a statement made byRivera, but that the deputy's testimony was contradicted by a police report establishing thatRivera could not have given such a statement before defendant's October 3, 2012 arrest. Wereject that contention. The deputy testified that he developed defendant as a suspect in the GrandIsland burglary—not the Elma burglary—based in part on Rivera's statement.Moreover, neither the deputy's testimony nor the police report indicate the date on which Riveragave his statement, and thus defendant failed to establish that the testimony and the police reportcontradict each other. Although the court improperly noted Rivera's statement among theevidence that provided the police with probable cause to arrest defendant for the Elma burglary,the record does not support the allegation that the deputy gave false testimony, and thus theprosecutor had no duty to correct him (cf. People v Colon, 13 NY3d 343, 349 [2009], rearg denied14 NY3d 750 [2010]).
Contrary to defendant's next contention, the court properly concluded that the deputies hadthe requisite consent to enter his apartment to arrest him on October 3, 2012. " 'Where aperson with ostensible authority consents to police presence on the premises, either explicitly ortacitly, the right to be secure against warrantless arrests in private premises as expressed inPayton v New York (445 US 573 [1980]) is not violated' " (People v Bunce, 141 AD3d 536,537 [2016], lv denied 28 NY3d 969 [2016]). Inasmuch as consent may be established byconduct (see People v Huff, 133AD3d 1223, 1223 [2015], lv denied 27 NY3d 999 [2016]; People v Sinzheimer, 15 AD3d732, 734 [2005], lv denied 5 NY3d 794 [2005]), we conclude that defendant'sgirlfriend's "conduct in stepping aside from the door to admit the [deputies] is enough to establishconsent" (People v Davis, 120 AD2d 606, 607 [1986], lv denied 68 NY2d 769[1986]). Moreover, defendant's girlfriend had actual authority to consent to the deputies' entrybecause she was residing in the apartment at the time (see generally People v Frankline, 87 AD3d 831, 833 [2011], lvdenied 19 NY3d 973 [2012]).
Defendant further contends that, on September 10, 2012, the deputies exceeded the scope oftheir consent to enter the apartment where defendant lived with his father by proceeding past theentryway and into defendant's bedroom. We reject that contention. During the suppressionhearing, two deputies testified that they knocked on the door of the apartment and thatdefendant's father answered the door. When the deputies asked for defendant, his father called hisname, left the door open, and led the deputies to defendant's bedroom. The deputies observeddefendant's girlfriend standing in the hallway outside the open bedroom door. Through the opendoor, the deputies saw defendant leave the bedroom through a back door leading onto a patio.Notably, one deputy smelled an odor of marihuana as soon as he entered the apartment, and heobserved marihuana in plain view in the bedroom. Rather than pursue defendant through thebedroom, the deputies turned around, left the apartment through the front door, and went outsideto look for him. We thus conclude that the record establishes that defendant's father freely andvoluntarily consented to the deputies' entry into the apartment, and that the deputies did notexceed the scope of that consent (seePeople v Swain, 109 AD3d 1090, 1091-1092 [2013], lv denied 23 NY3d 968[2014]; People v Kelley, 220 AD2d 456, 456 [1995], lv denied 87 NY2d 922[1996]).
Contrary to defendant's further contention, the court properly concluded that the deputies hadvalid consent to conduct a warrantless search of his bedroom on September 10, 2012. "It is wellestablished that the police need not procure a warrant in order to conduct a lawful search whenthey have obtained the voluntary consent of a party possessing the requisite authority or controlover the premises or property to be inspected" (People v Adams, 53 NY2d 1, 8 [1981],rearg denied 54 NY2d 832 [1981], cert denied 454 US 854 [1981]). The deputies'testimony established that defendant's father, who was the sole lessee of the apartment, read theform containing the consent to search the premises, indicated that he understood it, and signed it.We thus conclude that the People "met their burden of establishing that defendant's fathervoluntarily consented to the search of the apartment, including defendant's bedroom where the[marihuana and cell phones were] found in plain view . . . , and that he had theauthority to consent to that search" (People v Adams, 244 AD2d 897, 898 [1997], lvdenied 91 NY2d 887 [1998]; see also Swain, 109 AD3d at [*3]1091-1092).
We agree with defendant, however, that the court erred in denying his motion to withdrawhis plea of guilty. "A trial court is constitutionally required to ensure that a defendant, beforeentering a guilty plea, has a full understanding of what the plea entails and its consequences" (People v Belliard, 20 NY3d 381,385 [2013]; see People v Streber,145 AD3d 1531, 1532 [2016]). It is nevertheless well established that a guilty plea is notinvalid merely because the court "failed to specifically enumerate all the rights to which thedefendant was entitled and to elicit from him or her a list of detailed waivers before accepting theguilty plea" (People v Harris, 61 NY2d 9, 16 [1983]; see People v Tyrell, 22 NY3d 359, 365 [2013]). Where the recordestablishes, however, that the court incorrectly advised the defendant of the consequences of hisguilty plea, the resulting plea "must be vacated because it was not knowingly, intelligently andvoluntarily entered" (People vJordan, 67 AD3d 1406, 1407 [2009]).
Here, the court incorrectly advised defendant with respect to the rights that defendant wasforfeiting in pleading guilty. It is well established that a defendant who pleads guilty may notchallenge on appeal the sufficiency or the admissibility of the evidence before the grand jury(see People v Hansen, 95 NY2d 227, 233 [2000]). The record establishes, however, thatdefendant asked to be assured that he could raise those issues on appeal from a judgment enteredupon his plea of guilty, and the court assured him that he could do so. Given those assurances,which ended up being false, defendant accepted the plea deal, and entered a guilty plea. Whendefendant learned that he would not be able to raise on appeal the above grand jury issues, hemade a motion to withdraw his plea, which the court denied. Under the circumstances, that waserror. We therefore conclude that the plea must be vacated and the matter remitted to CountyCourt for further proceedings on the indictment. Present—Peradotto, J.P., Carni, Lindley,Troutman and Scudder, JJ.