Opinion
2003-1476 K CR.
Decided March 25, 2005.
Appeal by defendant from a judgment of the Criminal Court, Kings County (M. Lopez-Torres, J.), rendered September 23, 2003, convicting her of menacing in the third degree (Penal Law § 120.15) and imposing sentence.
Judgment of conviction unanimously affirmed.
PRESENT: PATTERSON, J.P., GOLIA and RIOS, JJ.
As a general rule, absent consent or exigent circumstances, a warrantless search inside a defendant's home is presumptively unreasonable and any evidence uncovered must be suppressed ( Payton v. New York, 445 US 573). When a search and seizure is based upon consent, the burden of proof rests heavily upon the People to establish the voluntariness of the waiver of a constitutional right ( People v. Whitehurst, 25 NY2d 389; People v. Vasco, 191 AD2d 602, lv denied 81 NY2d 1081). Consent to search, a relinquishment of constitutional protection under both the Federal and State Constitutions against unjustified official intrusion, must be a free and unconstrained choice. Official coercion, even if deviously subtle, nullifies apparent consent ( People v. Gonzalez, 39 NY2d 122, 124). "Where there is coercion there cannot be consent" ( Bumper v. North Carolina, 391 US 543, 550). No one circumstance is determinative of the voluntariness of consent. In People v. Gonzalez ( 39 NY2d 122, supra), the Court of Appeals set forth several factors to be considered in determining the voluntariness of an apparent consent, to wit; 1) whether the consenter was in custody or under arrest; 2) whether the consenter was confronted by a large number of police agents; 3) the background of the consenter; 4) whether the consenter had been evasive or uncooperative, and 5) whether the consenter was advised of his/her right to refuse. Accordingly, whether or not consent has been voluntarily given or is only a yielding to overbearing official pressure must be evaluated in light of the totality of the circumstances ( see Schneckloth v. Bustamonte, 412 US 218, 224; see also People v. Vestea, 6 Misc 3d 40 [App Term, 9th 10th Jud Dists 2004]).
It is well settled that the factual findings of the suppression court are entitled to great deference and will not be disturbed unless clearly erroneous ( People v. Prochilo, 41 NY2d 759, 761; People v. Morales, 210 AD2d 173, lv denied 84 NY2d 1035). Here, as the record makes clear, the judge who heard the evidence was amply warranted in finding the testimony of the police officers credible. The credible evidence established that defendant herein was in the hallway with the door to her apartment open when she acknowledged, in a calm and precise manner, that she had a firearm inside her apartment together with a permit therefor. She opened the door, allowed the officers inside and directed one of them to the firearm. She made no protest during this period. Under said facts, the court's finding that the officers' entry into the apartment was consensual should not be disturbed ( see People v. Brown, 234 AD2d 211, affd 91 NY2d 854; People v. Smith, 239 AD2d 219, lv denied 90 NY2d 911).
A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury. In the case at bar, complainant testified that during a verbal dispute, defendant went into her apartment and returned with a gun which she pointed at complainant after threatening to kill her. The court was presented with two different versions as to what occurred. In such instances, resolution of issues of credibility, as well as the weight to be accorded the evidence, are primarily questions to be determined by the trier of facts who saw and heard the witnesses ( People v. Gaimari, 176 NY 84). Its determination should be given great weight on appeal and should not be disturbed unless clearly unsupported by the record ( People v. Atlas, 183 App Div 595, affd 230 NY 629; People v. Garafolo, 44 AD2d 86, 88). Thus, viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 NY2d 620), we find that it was legally sufficient to establish defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the findings are not against the weight of the credible evidence ( see CPL 470.15).