        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1113
KA 14-01317
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DEMETRIUS A. HUFF, DEFENDANT-APPELLANT.


KATHRYN FRIEDMAN, BUFFALO, FOR DEFENDANT-APPELLANT.

DEMETRIUS A. HUFF, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered January 3, 2014. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of murder in the second degree (Penal Law § 125.25 [1]),
defendant contends that Supreme Court erred in denying his motion to
suppress physical evidence seized from the attic of the home where he
resided with his grandmother. We reject that contention. Following a
hearing, the court credited the testimony of a detective that the
grandmother had voluntarily consented to the search. Although the
detective was unable to obtain a written consent to the search, “[i]t
is well settled that consent can be established by conduct” (People v
Sinzheimer, 15 AD3d 732, 734, lv denied 5 NY3d 794). According to the
detective who testified at the hearing, the grandmother, who had a
master’s degree, was pleasant and cooperative, she let the detectives
into the house, and she led them directly to the attic and unlocked
the door to the attic for them. Only after the inculpatory evidence
was found did the grandmother become aggravated and refuse to sign the
consent form. Although the grandmother testified that she let the
detectives into her home only after they told her they had a search
warrant, the testifying detective denied telling the grandmother that
they had a search warrant.

     The court credited the testimony of the detective, and “ ‘[i]t is
well settled that [t]he suppression court’s credibility determinations
. . . are granted deference and will not be disturbed unless
unsupported by the record’ ” (People v May, 100 AD3d 1411, 1412, lv
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                                                         KA 14-01317

denied 20 NY3d 1063). Crediting such testimony, we conclude that the
People met their burden of establishing “ ‘that the consent was in
fact voluntarily given, and not the result of duress or coercion,
express or implied’ by the actions of the law enforcement authorities”
(People v Quagliata, 53 AD3d 670, 671, lv denied 11 NY3d 834, quoting
Schneckloth v Bustamonte, 412 US 218, 248). The grandmother
manifested her consent to the search by her willingness to cooperate
and her conduct in leading the officers to the attic and unlocking the
door thereto (see People v McCray, 96 AD3d 1480, 1481, lv denied 19
NY3d 1104; People v Allah, 54 AD3d 632, 632, lv denied 12 NY3d 755;
Quagliata, 53 AD3d at 672; cf. People v McFadden, 179 AD2d 1003, 1004,
appeal dismissed 79 NY2d 996).

     Defendant further contends that the court erred in refusing to
suppress his statements to the police. At the suppression hearing, a
detective testified that defendant was read and waived his
Miranda rights before the initial interview. Although the actual card
could not be located and thus was not presented at the hearing, the
court credited the detective’s unrebutted testimony, and such a
credibility determination is entitled to great deference (see People v
Prochilo, 41 NY2d 759, 761). “[T]he warnings given by this
experienced [detective] were adequate and fully conveyed to defendant
his rights. No more is required” (People v Vega, 225 AD2d 890, 891,
lv denied 88 NY2d 943).

     We reject defendant’s contention that his statements were not
voluntarily given because he was 17 years old at the time of the
interview, allegedly suffered from a learning disability and was
unaccompanied by his grandmother to the interview. “A court generally
must look to the totality of the circumstances to determine the
voluntariness of an inculpatory statement . . . ‘The factors to be
examined in determining the totality of the circumstances surrounding
a defendant’s confession include the duration and conditions of
detention, the attitude of the police toward the defendant, and the
age, physical state, and mental state of the defendant’ ” (People v
Brown, 113 AD3d 785, 785, lv denied 23 NY3d 1018; see People v Kemp,
266 AD2d 887, 888, lv denied 94 NY2d 921). In this case, defendant
“was legally an adult . . . Thus, there was no requirement that
defendant’s [guardian] be present during the police questioning”
(People v Lewis, 277 AD2d 1010, 1011, lv denied 96 NY2d 736).
Moreover, there was no evidence that defendant was isolated from his
grandmother as a result of “official deception or trickery” (People v
Salaam, 83 NY2d 51, 55). Although defendant contends that he suffered
from a learning disability, the grandmother testified at the hearing
that defendant was able to complete age-appropriate school work. We
thus conclude that “there is insufficient evidence in the record to
support [defendant’s] assertion that [he] had [a learning disability]
or subnormal intelligence and, therefore, could not knowingly or
intelligently waive his rights” (People v Herr, 203 AD2d 927, 928,
affd 86 NY2d 638).

     Defendant also challenges the voluntariness of the statement
based on the seven-hour interrogation that preceded his first
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                                                         KA 14-01317

statement. We conclude, however, that the duration of the interview
did not render the resulting statement involuntary. Defendant was
given breaks to use the bathroom and smoke cigarettes, and he was
offered food and beverages (see People v Clyburn-Dawson, 128 AD3d
1350, 1351; People v Figueroa-Norse, 120 AD3d 913, 914, lv denied 25
NY3d 1071; People v Collins, 106 AD3d 1544, 1545, lv denied 21 NY3d
1072). We thus conclude “that the People proved beyond a reasonable
doubt that defendant’s statements were voluntary” (Kemp, 266 AD2d at
888).

      Contrary to defendant’s further contention, we conclude that the
court properly granted the People’s motion to vacate defendant’s
earlier plea of guilty to a reduced charge of manslaughter in the
first degree. In accordance with that earlier plea agreement,
defendant had agreed to testify truthfully against the codefendant in
exchange for being permitted to plead guilty to the reduced charge.
After defendant entered his plea and was called to testify at the
codefendant’s trial, however, defendant denied all the facts that he
had previously admitted in his statements and plea colloquy. It is
well settled that “[c]onditions agreed upon as part of a plea bargain
are generally enforceable, unless violative of statute or public
policy” (People v Hicks, 98 NY2d 185, 188). We reject defendant’s
contention that he substantially complied with the terms of the plea
agreement. “Whether a defendant has in fact performed his end of a
plea bargain is not tested by the defendant’s subjective
interpretation but rather[, it is tested] by an objective
interpretation of the agreement” (People v Cuadrado, 161 AD2d 232,
233, lv denied 76 NY2d 855) and, here, there can be no legitimate
dispute that defendant failed to perform his end of the bargain when
he refused to testify truthfully at the codefendant’s trial (see e.g.
People v Brennan, 62 AD3d 1167, 1168, lv denied 13 NY3d 794; People v
Dunton, 10 AD3d 808, 808, lv denied 4 NY3d 830; Cuadrado, 161 AD2d at
233). Where, as here, a defendant has materially breached the plea
agreement, the court “ha[s] the authority to vacate the [defendant’s]
guilty plea” (Matter of Klein v Cowhey, 161 AD2d 643, 643; see People
v Aponte, 212 AD2d 157, 161), and the matter may proceed to trial on
the original indictment (see generally People v Bartley, 47 NY2d 965,
966).

     Contrary to defendant’s contention, the testimony of the
jailhouse informant was not incredible as a matter of law (see People
v Carr, 99 AD3d 1173, 1174, lv denied 20 NY3d 1010), i.e., “manifestly
untrue, physically impossible, contrary to experience, or
self-contradictory” (People v Ponzo, 111 AD3d 1347, 1348 [internal
quotation marks omitted]; see People v Errington, 121 AD3d 1553, 1555,
lv denied 25 NY3d 1163).

     Defendant contends that the evidence is legally insufficient to
support the conviction of intentional murder. To the extent that
defendant contends that there was no evidence of his intent to kill
the victim and no evidence that he inflicted the fatal injuries, those
contentions have not been preserved for our review (see People v Gray,
89 NY2d 10, 19; People v Broadnax, 52 AD3d 1306, 1307, lv denied 11
                                 -4-                          1113
                                                         KA 14-01317

NY3d 830). In any event, those contentions lack merit. Here,
defendant’s intent to kill may be inferred from the evidence that he
stabbed the victim 10 times and held the victim down while others
stabbed him (see People v Pearson, 93 AD3d 1343, 1343, lv denied 19
NY3d 866; People v Moore, 184 AD2d 1042, 1042, lv denied 80 NY2d 907).
Although there is no evidence that defendant inflicted the fatal stab
wounds, he was charged as an accessory, and the jury was instructed on
accessorial liability. As we noted in the case of the codefendant
(People v Nafi, ___ AD3d ___ [Oct. 2, 2015]), “[a]ccessorial liability
requires only that defendant, acting with the mental culpability
required for the commission of the crime, intentionally aid another in
the conduct constituting the offense” (People v Chapman, 30 AD3d 1000,
1001, lv denied 7 NY3d 811 [internal quotation marks omitted]).

     With respect to defendant’s remaining challenges to the
sufficiency of the evidence, we conclude that the evidence, when
viewed in the light most favorable to the People, is legally
sufficient to support the conviction (see People v Contes, 60 NY2d
620, 621; see generally People v Bleakley, 69 NY2d 490, 495).
Moreover, viewing the evidence in light of the elements of the crime
as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
conclude that an acquittal would have been unreasonable, and thus that
the verdict is not against the weight of the evidence (see id. at 348;
Bleakley, 69 NY2d at 495).




Entered:   November 13, 2015                   Frances E. Cafarell
                                               Clerk of the Court
