Opinion
2011-11-22
The PEOPLE, etc., respondent, v. Charles NIELSEN, appellant.
Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Jessica L. Zellner of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Jessica L. Zellner of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County, (Lewis, J.), rendered June 29, 2009, convicting him of burglary in the second degree, grand larceny in the third degree, criminal possession of stolen property in the third degree, and criminal possession of stolen property in the fourth degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Hollie, J.), of those branches of the defendant's omnibus motion which were to suppress certain physical evidence and statements he made to law enforcement officials.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the defendant's argument that certain physical evidence and statements he made to law enforcement officials should be suppressed as the fruit of an unlawful arrest is preserved for appellate review ( see CPL 470.05[2]; People v. Wynn, 25 A.D.3d 576, 577, 808 N.Y.S.2d 717). However, the Supreme Court properly denied those branches of the defendant's omnibus motion which were to suppress certain physical evidence and statements he made to law enforcement officials ( see United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497; Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639). The court's determinations that the defendant gave the police consent to enter his home ( see People v. Gonzalez, 222 A.D.2d 453, 453, 634 N.Y.S.2d 538; People v. Washington, 209 A.D.2d 817, 819, 619 N.Y.S.2d 360; People v. Schof, 136 A.D.2d 578, 579, 523 N.Y.S.2d 179; People v. Taylor, 111 A.D.2d 520, 521, 489 N.Y.S.2d 394; see also People v. Kalaj, 247 A.D.2d 633, 633, 669 N.Y.S.2d 358) and voluntarily agreed to exit his home and accompany them to the police precinct ( see People v. Minley, 68 N.Y.2d 952, 953, 510 N.Y.S.2d 87, 502 N.E.2d 1002; People v. Cameron, 74 A.D.3d 1223, 1224, 905 N.Y.S.2d 619; People v. Bhattacharjee, 51 A.D.3d 684, 684, 857 N.Y.S.2d 499; People v. Morales, 250 A.D.2d 782, 783, 672 N.Y.S.2d 782; People v. Dollison, 221 A.D.2d 654, 655, 634 N.Y.S.2d 194; People v. Anderson, 146 A.D.2d 638, 639–640, 536 N.Y.S.2d 543), are supported by the record.