People of State of New York v. Xochimitl

147 A.D.3d 793

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 2017
• Status: Published

Opinions

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered November 27, 2012, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress his statements to law enforcement officials.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the Supreme Court properly denied suppression of his postarrest statements. “ ‘[T]he police may lawfully conduct a warrantless search when they have obtained the voluntary consent of a party who possesses the requisite degree of authority and control over the premises or personal property in question’ ” (People v Watson, 101 AD3d 913, 914 [2012], quoting People v Cosme, 48 NY2d 286, 290 [1979]; see Payton v New York, 445 US 573, 576 [1980]). Here, the evidence adduced at the suppression hearing established that an elderly female relative, who lived in the subject apartment with the defendant and other members of their family, gave the police consent to enter the apartment by opening the door and stepping aside in response to the officers’ request to enter (see People v Lopez, 104 AD3d 876, 876 [2013]; People v Nielsen, 89 AD3d 1041, 1042 [2011]; People v Bran, 82 AD3d 1000, 1000 [2011]; People v Taylor, 111 AD2d 520, 521 [1985]). The evidence further established that the woman’s consent was voluntarily given and was not the product of coercion (see People v Starks, 91 AD3d 975, 976 [2012]; People v Quagliata, 53 AD3d 670, 672 [2008]).

The defendant’s contention that the Supreme Court discharged potential jurors based upon their availability for the month-long trial without conducting a sufficient independent inquiry is unpreserved for appellate review (see People v King, 110 AD3d 1005, 1006 [2013]; People v Casanova, 62 AD3d 88, 92 [2009]; People v Toussaint, 40 AD3d 1017, 1017-1018 [2007]) and, in any event, without merit (see People v Umana, 76 AD3d 1111, 1112 [2010]; People v Toussaint, 40 AD3d at 1017-1018).

The defendant’s contention that the sentence imposed was improperly based on the crime of which he was acquitted is unpreserved for appellate review (see CPL 470.05 [2]; People v Malcolm, 131 AD3d 1068, 1071 [2015]) and, in any event, without merit (see People v Dubois, 116 AD3d 878, 878 [2014]). Moreover, the sentence imposed was not excessive (see People v Malcolm, 131 AD3d at 1071; People v Gilliam, 168 AD2d 687, 688 [1990]).

Dillon, J.P., Chambers and Brathwaite Nelson, JJ., concur.