People v. Tremblay

7 Citing cases

  1. State v. Cohen

    103 N.M. 558 (N.M. 1985)   Cited 38 times
    Holding that consent was specific and unequivocal on the basis of a written consent form

    Neither is a consent to search rendered involuntary by a failure to advise defendant of his right to refuse a request to search without a search warrant. United States v. Shields, 573 F.2d 18 (10th Cir. 1978); United States v. Agapito, 620 F.2d 324 (2nd Cir. 1980); People v. Tremblay, 77 A.D.2d 807, 430 N.Y.S.2d 757 (1980). In the present case defendants were advised of their Miranda rights and their right to refuse to give their consent to a search of their vehicle absent a search warrant.

  2. People v. Brown

    107 A.D.3d 1305 (N.Y. App. Div. 2013)   Cited 17 times

    In any event, โ€œ โ€˜[t]he voluntariness of a consent to search is not vitiated, per se, by the failure to give Miranda warnings to an accused while subject to custodial interrogationโ€™ โ€ ( People v. McCray, 96 A.D.3d 1480, 1481, 946 N.Y.S.2d 744 [2012],lv. denied19 N.Y.3d 1104, 955 N.Y.S.2d 559, 979 N.E.2d 820 [2012], quoting People v. Tremblay, 77 A.D.2d 807, 807, 430 N.Y.S.2d 757 [1980] ). Here, the evidence supports County Court's original conclusion that, based on the totality of circumstances, defendant's consent to the search was voluntary ( see People v. Young, 86 A.D.3d 796, 797, 927 N.Y.S.2d 221 [2011],lv.

  3. People v. McCray

    96 A.D.3d 1480 (N.Y. App. Div. 2012)   Cited 29 times

    nt to the search, it is well settled that the People have the heavy burden of establishing voluntary consent ( see People v. Gonzalez, 39 N.Y.2d 122, 127โ€“128, 383 N.Y.S.2d 215, 347 N.E.2d 575;People v. Whitehurst, 25 N.Y.2d 389, 391, 306 N.Y.S.2d 673, 254 N.E.2d 905). The determination whether consent was voluntarily given is based on the totality of the circumstances ( see Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854;Gonzalez, 39 N.Y.2d at 128, 383 N.Y.S.2d 215, 347 N.E.2d 575;People v. Hyla, 291 A.D.2d 928, 929, 738 N.Y.S.2d 147,lv. denied98 N.Y.2d 652, 745 N.Y.S.2d 510, 772 N.E.2d 613). The fact that defendant was in custody does not require suppression ( see generally People v. Edwards, 46 A.D.3d 698, 699, 847 N.Y.S.2d 601,lv. denied10 N.Y.3d 764, 854 N.Y.S.2d 326, 883 N.E.2d 1261), and โ€œ[t]he voluntariness of a consent to search is not vitiated, per se, by the failure to give Miranda warnings to an accused while subject to custodial interrogationโ€ ( People v. Tremblay, 77 A.D.2d 807, 807, 430 N.Y.S.2d 757). Here, the totality of the circumstances establishes that defendant โ€œnot only consented to the search, but also cooperated with the [search by tossing his apartment keys to the searching officer] to accomplish the search.

  4. State v. Oxley

    64 A.D.3d 1078 (N.Y. App. Div. 2009)   Cited 28 times

    Considering all of the circumstances, the court reasonably found that defendant did not make an unequivocal request for counsel to the authorities ( see People v Glover, 87 NY2d 838, 839; People v Fridman, 71 NY2d 845, 846; People v Thompson, 153 AD2d 456, 460-461, lv denied 76 NY2d 867). Even if his statement was construed as a request for counsel, such request would not have invalidated the prior consent to search his house ( compare People v Esposito, 68 NY2d 961, 962; People v Loomis, 255 AD2d 916, 917, lv denied 92 NY2d 1051; People v Tremblay, 77 AD2d 807, 807-808). Additionally, defendant's later waiver of his Miranda rights would have over-ridden any noncustodial request for counsel ( see People v Thompson, 153 AD2d at 461-462).

  5. People v. Passero

    83 A.D.2d 769 (N.Y. App. Div. 1981)   Cited 9 times

    It is further argued that the court erred in charging the jury that proof of possession of any gambling record "is presumptive evidence of possession thereof with knowledge of its * * * contents" (Penal Law, ยง 225.35, subd 1) in the absence of a further charge that the presumption is permissive and not mandatory (see People v Rudney, 83 A.D.2d 746). Although we would find that the charge as a whole was balanced, and did not detract from the People's burden of proof (compare People v. Passero, 74 A.D.2d 726), the defendant did not object to the charge and we decline to review it as a matter of discretion (see People v. Thomas, 50 N.Y.2d 467; People v. Tremblay, 77 A.D.2d 807, 808). Nor is there any basis for reversal in defendant's claim of error based upon the receipt into evidence of an automobile repair bill made out in the names of defendant and Couchman, and listing their address as 2336 Culver Road, which concededly was the residence of Couchman, if only arguably that of defendant.

  6. People v. Lipton

    78 A.D.2d 999 (N.Y. App. Div. 1980)   Cited 2 times

    Moreover, at the end of the charge when the trial court had failed to so charge and at a time when the failure could readily have been corrected, counsel did not except or object to the charge as given. Such inaction under the circumstances may not serve to preserve this issue for review (People v Robinson, 36 N.Y.2d 224, 228). We also decline to review the issue in the interest of justice (see People v Tremblay, 77 A.D.2d 807; CPL 470.15). The other issues raised by defendant are without merit.

  7. People v. Bosque

    78 A.D.2d 986 (N.Y. App. Div. 1980)   Cited 27 times

    The witness Senquis had known both defendants for some five years prior to the date of the crime and his in-court identification was completely independent of any prior viewing of defendants' photographs (see People v Bryant, 39 A.D.2d 80, affd 31 N.Y.2d 744). The witness Fuentes identified both defendants from a group of photographs in a procedure which was entirely free from suggestion. Defendants now, for the first time, assert that the trial court erred in its instruction of "presumed intent" (see Sandstrom v Montana, 442 U.S. 510). Since the defendants failed to object to the charge at trial, the error, if any there was, is not reviewable (People v Thomas, 50 N.Y.2d 467; People v Tremblay, 77 A.D.2d 807). Additionally, defendant Bosque contends that the evidence was insufficient to prove that he shared defendant Colon's intent to murder the victim. While we agree that Bosque cannot be guilty of murder in the second degree unless he had the intent to cause the death of the victim, we do not agree that the evidence was insufficient to prove that intent.