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

226
KA 15-00994
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DWAYNE HOLLEY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered October 4, 2012. The judgment convicted
defendant, upon a nonjury verdict, of robbery in the first degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of robbery in the first degree (Penal Law
§ 160.15 [4]). Defendant contends that Supreme Court erred in
refusing to suppress evidence seized from his girlfriend’s apartment,
where he spent many nights, because his girlfriend’s consent to search
her apartment was not voluntarily given. We reject that contention.
Defendant’s girlfriend gave both oral and written consent to search
her apartment and, based on the totality of the circumstances, we
conclude that the consent was voluntary and not the product of
coercion (see People v Nance, 132 AD3d 1389, 1390, lv denied 26 NY3d
1091; People v Caldwell, 221 AD2d 972, 972-973, lv denied 87 NY2d
920). Indeed, the record establishes that “the atmosphere was not one
of ‘overbearing official pressure’ ” (People v Oldacre, 53 AD3d 675,
677, quoting People v Gonzalez, 39 NY2d 122, 128). We further reject
defendant’s contention that the police improperly detained him in
order to prevent him from objecting to the search of the apartment
(see Nance, 132 AD3d at 1389). The police suspected defendant of an
armed bank robbery that had occurred earlier that day, thus giving the
police a reasonable basis for detaining him for officer safety (see
id. at 1389-1390).

     Defendant’s contention that there was a Payton violation is
likewise without merit. “ ‘Where a person with ostensible authority
consents to police presence on the premises, either explicitly or
tacitly, the right to be secure against warrantless arrests in private
                                 -2-                           226
                                                         KA 15-00994

premises as expressed in Payton v New York (445 US 573 [1980]) is not
violated’ ” (People v Bunce, 141 AD3d 536, 537, lv denied 28 NY3d 969;
see People v Kozikowski, 23 AD3d 990, 990, lv denied 6 NY3d 755).
Here, the conduct of defendant’s girlfriend when the police arrived at
her apartment established that she consented to the police entering
her home (see People v Richardson, 143 AD3d 1252, 1254; People v Sigl,
107 AD3d 1585, 1586-1587, lv denied 21 NY3d 1077). Defendant’s
contention that the police lacked probable cause to arrest him is not
preserved for our review (see Nance, 132 AD3d at 1390), and is without
merit in any event (see People v Reyes, 191 AD2d 467, 468).

     Contrary to defendant’s contention, the evidence is legally
sufficient to establish that he was the perpetrator of the robbery
(see generally People v Bleakley, 69 NY2d 490, 495). The bank teller
identified defendant as the perpetrator, and that identification was
buttressed by “ ‘a compelling chain of circumstantial evidence that
had no reasonable explanation except that defendant was . . . the
perpetrator[]’ ” (People v Daniels, 125 AD3d 1432, 1433, lv denied 25
NY3d 1071, reconsideration denied 26 NY3d 928). Viewing the evidence
in light of the elements of the crime in this nonjury trial (see
People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is
not against the weight of the evidence (see generally Bleakley, 69
NY2d at 495).

     We reject defendant’s contention that the court erred in refusing
to suppress his statements as involuntarily made. The police
officers’ reference to a surveillance video, while deceptive, “was not
so fundamentally unfair as to deny defendant due process,” nor was it
“accompanied by a promise or threat likely to produce a false
confession” (People v Dickson, 260 AD2d 931, 932, lv denied 93 NY2d
1017, citing People v Tarsia, 50 NY2d 1, 11; see People v Lewis, 93
AD3d 1264, 1265-1266, appeal dismissed 19 NY3d 963). The sentence,
which was close to the minimum, is not unduly harsh or severe.




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
