Opinion
January 24, 1983
Appeal by defendant from a judgment of the County Court, Suffolk County (Moynihan, J.), rendered June 9, 1982, convicting him, upon plea of guilty, of attempted assault in the second degree, and imposing sentence. The appeal brings up for review the denial, after a hearing, of defendant's motion to suppress oral and written statements. Judgment affirmed. The case is remitted to the County Court, Suffolk County, for further proceedings pursuant to CPL 460.50 (subd 5). The People sustained their burden of proving that defendant's brother had authority to permit entry into the home which he jointly occupied with defendant, that on May 16, 1981, at approximately 7:00 A.M., he voluntarily consented to the police officers' entry into the home ( People v. Cosme, 48 N.Y.2d 286), and that defendant presented himself to the police officers while the arresting officer was engaged in conversation with defendant's brother in the living room. Based upon the court's finding of a consensual entry, supported by the record, the warrantless entry for the purpose of arresting the defendant was not within the purview of Payton v New York ( 445 U.S. 573). Accordingly, we need not determine if the record supports the court's alternative finding of attenuation, thus permitting the use of defendant's signed statement which conformed to Huntley-Miranda requirements. Titone, J.P., Gibbons, Thompson and Bracken, JJ., concur.