LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.
J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF
COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, DEJOSEPH, AND
from a judgment of the Supreme Court, Erie County (Penny M.
Wolfgang, J.), rendered October 4, 2012. The judgment
convicted defendant, upon a nonjury verdict, of robbery in
the first degree.
hereby ORDERED that the judgment so appealed from is
Defendant appeals from a judgment convicting him upon a
nonjury verdict of robbery in the first degree (Penal Law
§ 160.15 ). 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, lv denied 26 N.Y.3d 1091;
People v Caldwell, 221 A.D.2d 972, 972-973, lv
denied 87 N.Y.2d 920). Indeed, the record establishes
that "the atmosphere was not one of overbearing official
pressure' " (People v Oldacre, 53 A.D.3d
675, 677, quoting People v Gonzalez, 39 N.Y.2d 122,
128). 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). 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).
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');">445 U.S. 573 ) is not
violated' " (People v Bunce, 141 A.D.3d
536, 537, lv denied 28 N.Y.3d 969; see People v
Kozikowski, 23 A.D.3d 990, 990, lv denied 6
N.Y.3d 755). 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; People v
Sigl, 107 A.D.3d 1585, 1586-1587, lv denied 21
N.Y.3d 1077). 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), and is
without merit in any event (see People v Reyes, 191
A.D.2d 467, 468).
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). 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, lv denied 25 N.Y.3d 1071,
reconsideration denied 26 N.Y.3d 928). 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), we conclude that the verdict is not against the weight
of the evidence (see generally Bleakley, 69 N.Y.2d
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, lv denied93 N.Y.2d 1017, citing
People v Tarsia, 50 N.Y.2d 1, 11; see People v
Lewis, 93 A.D.3d 1264, ...