Opinion
2019–02202 Ind.No. 1624/17
03-25-2020
The PEOPLE, etc., Respondent, v. Lenwood DOWNEY, Appellant.
Robert DiDio, Kew Gardens, NY, for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Sharon Y. Brodt, and Russell Shapiro of counsel), for respondent.
Robert DiDio, Kew Gardens, NY, for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Sharon Y. Brodt, and Russell Shapiro of counsel), for respondent.
WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed.
We agree with the Supreme Court's determination denying those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials. A party who shares a common right of access or control to property with a defendant may voluntarily consent to the search of the property (see United States v. Matlock , 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 ; People v. Cosme , 48 N.Y.2d 286, 290, 422 N.Y.S.2d 652, 397 N.E.2d 1319 ). "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 is not violated" ( People v. Russo , 243 A.D.2d 658, 659, 663 N.Y.S.2d 623 ; see People v. Bunce , 141 A.D.3d 536, 35 N.Y.S.3d 414 ). "[C]onsent can be established by conduct as well as by words" ( People v. Gonzalez , 222 A.D.2d 453, 453, 634 N.Y.S.2d 538 ; see People v. Satornino , 153 A.D.2d 595, 595, 544 N.Y.S.2d 224 ; People v. Davis , 120 A.D.2d 606, 606–607, 502 N.Y.S.2d 80 ). With respect to apparent authority, "where the searching officers rely in good faith on the apparent capability of an individual to consent to a search and the circumstances reasonably indicate that ... individual does, in fact, have the authority to consent, evidence obtained as the result of such a search should not be suppressed" ( People v. Adams , 53 N.Y.2d 1, 9, 439 N.Y.S.2d 877, 422 N.E.2d 537 ; see People v. Miloro , 22 A.D.3d 768, 769, 804 N.Y.S.2d 372 ).
Here, the complainant called 911, and two officers responded to the subject residence after receiving a radio dispatch that the complainant had been assaulted by the defendant, who is her uncle. When the officers arrived at the premises, the complainant informed them that the defendant had assaulted her inside their home. When an officer asked her which house was hers, the complainant pointed to the residence. A short time later, the complainant again pointed toward the residence and told an officer that the defendant had just gone inside, and she entered the front door of the residence with the officer. This conduct was sufficient to establish that the complainant gave her consent for the police to enter the residence, and that the police officers reasonably relied in good faith upon the complainant's apparent authority.
In light of our determination, we need not reach the parties' remaining contentions.
MASTRO, J.P., MILLER, MALTESE and BRATHWAITE NELSON, JJ., concur.