Opinion
03-25-2016
The PEOPLE of the State of New York, Respondent, v. Anthony MILLS, Defendant–Appellant.
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu Of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Lowry of Counsel), for Respondent.
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu Of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Lowry of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND SCUDDER, JJ.
MEMORANDUM:
On appeal from a judgment convicting him after a nonjury trial of four counts of burglary in the second degree (Penal Law § 140.25[2] ), defendant challenges the validity of his waiver of a jury trial. Defendant failed to preserve that challenge for our review (see People v. Hailey, 128 A.D.3d 1415, 1415–1416, 7 N.Y.S.3d 808, lv. denied 26 N.Y.3d 929, 17 N.Y.S.3d 92, 38 N.E.3d 838 ; see generally People v. Padro, 75 N.Y.2d 820, 821, 552 N.Y.S.2d 555, 551 N.E.2d 1233, rearg. denied 75 N.Y.2d 1005, 557 N.Y.S.2d 312, 556 N.E.2d 1119, rearg. dismissed 81 N.Y.2d 989, 599 N.Y.S.2d 797, 616 N.E.2d 152 ). In any event, we conclude that defendant's challenge is without merit inasmuch as " ‘the record establishes that defendant's waiver was knowing, voluntary and intelligent’ " (Hailey, 128 A.D.3d at 1416, 7 N.Y.S.3d 808 ; see People v. Moran, 87 A.D.3d 1312, 1312, 930 N.Y.S.2d 353, lv. denied 19 N.Y.3d 976, 950 N.Y.S.2d 358, 973 N.E.2d 768 ).
Defendant contends that County Court erred in refusing to suppress evidence obtained pursuant to an arrest of defendant because the police lacked probable cause to arrest him. We reject defendant's contention, inasmuch as "the police had probable cause to arrest him on the basis of statements [of his accomplice] implicating him in the crime" (People v. Luciano, 43 A.D.3d 1183, 1183, 843 N.Y.S.2d 153, lv. denied 9 N.Y.3d 991, 848 N.Y.S.2d 609, 878 N.E.2d 1025 ; see People v. Berzups, 49 N.Y.2d 417, 426–427, 426 N.Y.S.2d 253, 402 N.E.2d 1155 ; People v. Fulton, 133 A.D.3d 1194, 1195, 19 N.Y.S.3d 152, lv. denied 26 N.Y.3d 1109, 26 N.Y.S.3d 767, 47 N.E.3d 97 ). We also reject defendant's contention that evidence recovered during a search of his residence should have been suppressed on the ground that his fiancé did not consent to the search. We conclude that the People met their burden of establishing at the suppression hearing that the police reasonably believed that defendant's fiancé had the authority to consent to the search of the residence (see People v. Adams, 53 N.Y.2d 1, 8, 439 N.Y.S.2d 877, 422 N.E.2d 537, rearg. denied 54 N.Y.2d 832, 443 N.Y.S.2d 1031, 427 N.E.2d 1192, cert. denied 454 U.S. 854, 102 S.Ct. 301, 70 L.Ed.2d 148 ; People v. Plumley, 111 A.D.3d 1418, 1419, 975 N.Y.S.2d 309, lv. denied 22 N.Y.3d 1140, 983 N.Y.S.2d 499, 6 N.E.3d 618 ), and that she voluntarily consented to the search (see generally People v. Gonzalez, 39 N.Y.2d 122, 128, 383 N.Y.S.2d 215, 347 N.E.2d 575 ; People v. May, 100 A.D.3d 1411, 1412, 953 N.Y.S.2d 767, lv. denied 20 N.Y.3d 1063, 962 N.Y.S.2d 614, 985 N.E.2d 924 ). The testimony of defendant's fiancé at the suppression hearing that she did not voluntarily consent to the search raised an issue of credibility that the court was entitled to resolve against defendant (see generally People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 ; People v. Twillie, 28 A.D.3d 1236, 1237, 813 N.Y.S.2d 626, lv. denied 7 N.Y.3d 795, 821 N.Y.S.2d 825, 854 N.E.2d 1290 ).
We reject defendant's further contention that the testimony of his accomplice was not sufficiently corroborated and thus that the conviction is not supported by legally sufficient evidence. The record establishes that the People presented sufficient evidence to satisfy the corroboration requirement, including, inter alia, evidence that several items stolen during the burglaries were found in defendant's residence (see CPL 60.22[1] ; People v. Reome, 15 N.Y.3d 188, 191–192, 906 N.Y.S.2d 788, 933 N.E.2d 186 ; People v. Cortez, 81 A.D.3d 742, 742–743, 916 N.Y.S.2d 176, lv. denied 16 N.Y.3d 894, 926 N.Y.S.2d 29, 949 N.E.2d 977 ). Contrary to defendant's contention, viewing the evidence in light of the elements of the crime of burglary in the second degree in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).Contrary to defendant's further contention that corrective action is required because the court failed to specify whether the sentences would run consecutively or concurrently, the record establishes that the court sentenced defendant to consecutive terms of incarceration for the first and second counts of burglary in the second degree, and that the sentences for the third and fourth counts would run concurrently. Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.