Opinion
1434 KA 15–01849
02-02-2018
The PEOPLE of the State of New York, Respondent, v. Christopher W. HOFFMAN, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:
Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ), burglary in the second degree (§ 140.25[2] ) and criminal possession of a controlled substance in the seventh degree (§ 220.03). The charges arose from defendant's burglary of his neighbor's home, which was witnessed by a neighbor, and the discovery of an unlicensed firearm and narcotics during a subsequent search of defendant's apartment. Defendant contends, inter alia, that Supreme Court erred in refusing to suppress the physical evidence that was obtained pursuant to the warrantless entry into his apartment.
"Where, as here, the People contend that a suspect gave his or her consent to the police to enter the suspect's apartment, ‘the burden of proof rests heavily upon the People to establish the voluntariness of that waiver of a constitutional right’ " ( People v. Forbes, 71 A.D.3d 1519, 1520, 897 N.Y.S.2d 352 [4th Dept 2010], lv denied 15 N.Y.3d 773, 907 N.Y.S.2d 462, 933 N.E.2d 1055 [2010], quoting People v. Whitehurst, 25 N.Y.2d 389, 391, 306 N.Y.S.2d 673, 254 N.E.2d 905 [1969] ). We conclude that defendant voluntarily consented to the entry of the police officers into his apartment (see People v. McCray, 96 A.D.3d 1480, 1481, 946 N.Y.S.2d 744 [4th Dept. 2012], lv denied 19 N.Y.3d 1104, 955 N.Y.S.2d 559, 979 N.E.2d 820 [2012] ). Testimony at the suppression hearing established that the police knocked twice before defendant opened the door. The officers were not brandishing their firearms. After defendant opened the door, he turned around and went back into his apartment, leaving the door wide open. Defendant did not object to the officers' presence in his home, and he was cooperative throughout the entire encounter. Based on the totality of the circumstances, we conclude that defendant's consent to the entry of the police was voluntary (see People v. Putnam, 50 A.D.3d 1514, 1514, 855 N.Y.S.2d 785 [4th Dept. 2008], lv denied 10 N.Y.3d 963, 863 N.Y.S.2d 147, 893 N.E.2d 453 [2008] ; cf. People v. Freeman, 29 N.Y.3d 926, 928, 72 N.E.3d 565 [2017], revg 141 A.D.3d 1164, 1165, 35 N.Y.S.3d 617 [4th Dept. 2016] ).
We have reviewed defendant's remaining contentions and conclude that they are unpreserved for our review (see CPL 470.05[2] ) and, in any event, are without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.