| People v Osbourne |
| 2019 NY Slip Op 09028 [178 AD3d 956] |
| December 18, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Trevor Osbourne, Appellant. |
Robert DiDio, Kew Gardens, NY, for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Danielle M. O'Boyle of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Joseph A.Zayas, J.), rendered January 7, 2019, convicting him of attempted murder in the second degree,criminal possession of a weapon in the second degree (two counts), and reckless endangerment inthe first degree, upon his plea of guilty, and imposing sentence. The appeal brings up for reviewthe denial, after a hearing (Deborah Stevens Modica, J.), of that branch of the defendant'somnibus motion which was to suppress his statements to law enforcement officials.
Ordered that the judgment is affirmed.
On February 3, 2016, the defendant fired several shots at the complainant. The police latertraced the defendant's whereabouts to a location in North Carolina. On March 4, 2016, in a jointoperation between New York and North Carolina law enforcement officials, the defendant wasdirected by the police, utilizing a long range acoustic device speaker, to exit an apartmentwherein he was located. In addition to issuing the directives for the defendant to exit theapartment, the police played a siren and chirping noises through the speaker. At a suppressionhearing, police officers testified that the defendant exited the apartment and was apprehendedoutside of the apartment. Following the hearing, the Supreme Court, upon crediting the officers'testimony, denied that branch of the defendant's omnibus motion which was to suppress hisstatements to law enforcement officials.
The defendant contends that his arrest violated his right under Payton v New York(445 US 573 [1980]), and, therefore, that his statements to law enforcement officials should havebeen suppressed as the fruit of an unlawful arrest. Specifically, he contends that the use of thespeaker was "a form of nonlethal force" which the police utilized to effect his arrest.
We agree with the Supreme Court's determination to deny that branch the defendant'somnibus motion which was to suppress his statements to law enforcement officials. "Thecredibility determinations of a hearing court following a suppression hearing are accorded greatdeference on appeal, and will not be disturbed unless clearly unsupported by the record" (People v Hobson, 111 AD3d 958,959 [2013]; see People v Prochilo, 41 NY2d 759, 761 [1977]). There is no basis todisturb the court's determinations to credit the police witnesses in this case (see People v Kelly, 131 AD3d484, 485 [2015]). According to the hearing testimony of those witnesses, the defendant'sarrest was effectuated when the police, without making any threats, directed the defendant tocome out of the apartment and he voluntarily exited (see People v Garvin, 30 NY3d 174, 181 [2017]; People v Spencer, 29 NY3d 302,312 [2017]; People v Reynoso, 2NY3d 820, 821 [2004]; People v Minley, 68 NY2d 952, 953-954 [1986]; People v Cameron, 74 AD3d 1223,1224 [2010]). Consequently, the arrest of the defendant was not in violation of Payton v NewYork (445 US 573 [1980]).
The defendant's remaining contentions are without merit. Rivera, J.P., Austin, Leventhal andIannacci, JJ., concur.