Opinion
03-24-2017
The PEOPLE of the State of New York, Respondent, v. Dwayne HOLLEY, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant. John J. Flynn, District Attorney, Buffalo (Daniel J. Punch of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant.
John J. Flynn, District Attorney, Buffalo (Daniel J. Punch of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, DeJOSEPH, AND SCUDDER, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a nonjury verdict of robbery in the first degree (Penal Law § 160.15 [4] ). Defendant contends that Supreme 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 not voluntarily given. We reject that contention. Defendant's girlfriend gave both oral and written consent to search her apartment and, based on the totality of the circumstances, we conclude that the consent was voluntary and not the product of coercion (see People v. Nance, 132 A.D.3d 1389, 1390, 17 N.Y.S.3d 261, lv. denied 26 N.Y.3d 1091, 23 N.Y.S.3d 647, 44 N.E.3d 945 ; People v. Caldwell, 221 A.D.2d 972, 972–973, 634 N.Y.S.2d 331, lv. denied 87 N.Y.2d 920, 641 N.Y.S.2d 602, 664 N.E.2d 513 ). Indeed, the record establishes that "the atmosphere was not one of ‘overbearing official pressure’ " (People v. Oldacre, 53 A.D.3d 675, 677, 861 N.Y.S.2d 444, quoting People v. Gonzalez, 39 N.Y.2d 122, 128, 383 N.Y.S.2d 215, 347 N.E.2d 575 ). We further reject defendant's contention that the police improperly detained him in order to prevent him from objecting to the search of the apartment (see Nance, 132 A.D.3d at 1389, 17 N.Y.S.3d 261 ). The police suspected defendant of an armed bank robbery that had occurred earlier that day, thus giving the police a reasonable basis for detaining him for officer safety (see id. at 1389–1390, 17 N.Y.S.3d 261 ).
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 as expressed in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) is not violated’ " (People v. Bunce, 141 A.D.3d 536, 537, 35 N.Y.S.3d 414 lv. denied 28 N.Y.3d 969, 43 N.Y.S.3d 257, 66 N.E.3d 3 ; see People v. Kozikowski, 23 A.D.3d 990, 990, 803 N.Y.S.2d 841, lv. denied 6 N.Y.3d 755, 810 N.Y.S.2d 423, 843 N.E.2d 1163 ). Here, the conduct of defendant's girlfriend when the police arrived at her apartment established that she consented to the police entering her home (see People v. Richardson, 143 A.D.3d 1252, 1254, 38 N.Y.S.3d 674 ;
People v. Sigl, 107 A.D.3d 1585, 1586–1587, 967 N.Y.S.2d 570, lv. denied 21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151 ). Defendant's contention that the police lacked probable cause to arrest him is not preserved for our review (see Nance, 132 A.D.3d at 1390, 17 N.Y.S.3d 261 ), and is without merit in any event (see People v. Reyes, 191 A.D.2d 467, 468, 594 N.Y.S.2d 55 ).
Contrary to defendant's contention, the evidence is legally sufficient to establish that he was the perpetrator of the robbery (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). The bank teller identified defendant as the perpetrator, and that identification was buttressed by " ‘a compelling chain of circumstantial evidence that had no reasonable explanation except that defendant was ... the perpetrator[ ]’ " (People v. Daniels, 125 A.D.3d 1432, 1433, 3 N.Y.S.3d 543, lv. denied 25 N.Y.3d 1071, 12 N.Y.S.3d 622, 34 N.E.3d 373, reconsideration denied 26 N.Y.3d 928, 17 N.Y.S.3d 90, 38 N.E.3d 836 ). Viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
We reject defendant's contention that the court erred in refusing to suppress his statements as involuntarily made. The police officers' reference to a surveillance video, while deceptive, "was not so fundamentally unfair as to deny defendant due process," nor was it "accompanied by a promise or threat likely to produce a false confession" (People v. Dickson, 260 A.D.2d 931, 932, 690 N.Y.S.2d 282, lv. denied 93 N.Y.2d 1017, 697 N.Y.S.2d 576, 719 N.E.2d 937, citing People v. Tarsia, 50 N.Y.2d 1, 11, 427 N.Y.S.2d 944, 405 N.E.2d 188 ; see People v. Lewis, 93 A.D.3d 1264, 1265–1266, 940 N.Y.S.2d 722, appeal dismissed 19 N.Y.3d 963, 950 N.Y.S.2d 115, 973 N.E.2d 213 ). The sentence, which was close to the minimum, is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.