| People v Evans |
| 2018 NY Slip Op 00167 [157 AD3d 716] |
| January 10, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Evans, Appellant. |
Paul Skip Laisure, New York, NY (Benjamin S. Litman of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Sholom J. Twersky, andKristen A. Carroll of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (William M.Harrington, J.), rendered August 5, 2014, convicting him of criminal possession of a weapon inthe second degree and grand larceny in the fourth degree, upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing (Miriam Cyrulnik, J.), ofthat branch of the defendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The defendant's contentions regarding that branch of his omnibus motion which was tosuppress physical evidence are without merit. The hearing court properly found that, under thetotality of the circumstances, the defendant voluntarily consented to the search of his home(see People v Gonzalez, 39 NY2d 122, 128-130 [1976]; People v Quagliata, 53 AD3d 670,671 [2008]). Although the defendant contended that he informed the police officers that they didnot have consent to search his home, the hearing court credited a police officer's testimony to thecontrary, and there is no basis to disturb that credibility finding on appeal (see People v Visich, 57 AD3d 804,806 [2008]). The failure of the officers to inform the defendant of his right to refuse consent wasnot sufficient to render the defendant's consent involuntary (see People v Gonzalez, 39NY2d at 130; People v Artis, 201 AD2d 488, 489 [1994]; People v Buggs, 140AD2d 617, 617-618 [1988]). Furthermore, the defendant cooperated with the officers beforeconsenting to the search, the number of officers present when the defendant consented does notcompel a finding that his consent was involuntary, and there was no evidence that the officers inany way exerted "unjustified psychological pressure" over the defendant in order to obtainconsent to search (People v Litt, 71 AD2d 926, 928 [1979]; see People vGonzalez, 39 NY2d at 129; People vBurno, 130 AD3d 747, 747 [2015]; People v Leiva, 33 AD3d 1021, 1023 [2006]).
The defendant's contention that the testimony of an analyst from the Office of the ChiefMedical Examiner violated his right to confrontation is without merit, as the analyst's testimonyestablished that she used "her independent analysis on the raw data" to conclude that it was 11.4million times more likely than not that the defendant's DNA was included in the mixture foundon the trigger and trigger guard of the subject gun (People v John, 27 NY3d 294, 315 [2016]). Thus, the analyst did notact "as a conduit for the conclusions of others," (id. at 315), and the defendant's [*2]right to confront the witnesses against him was not violated.
The defendant's contention that he was deprived of the effective assistance of counsel iswithout merit (see Strickland v Washington, 466 US 668 [1984]; People v Baldi,54 NY2d 137 [1981]).
The defendant's remaining contention is not preserved for appellate review, and we decline toreview it pursuant to our interest of justice jurisdiction (see People v Padro, 75 NY2d820, 821 [1990]; People v Stewart,71 AD3d 797, 798 [2010]; People v Hewlett, 133 AD2d 418, 419 [1987], affd71 NY2d 841 [1988]). Dillon, J.P., Leventhal, Hinds-Radix and LaSalle, JJ., concur.