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

1366
KA 11-00931
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TERRENCE L. NICHOLS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (James J.
Piampiano, J.), rendered April 28, 2011. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree and criminal possession of a weapon in the third
degree.

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

     Memorandum: Defendant appeals from a judgment convicting him,
upon his plea of guilty, of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]) and criminal possession of a
weapon in the third degree (§ 265.02 [1]). We reject defendant’s
contention that County Court erred in refusing to suppress a gun
discovered by probation officers and a police officer during the
search of defendant’s residence, as well as defendant’s subsequent
statement to the police, on the ground that neither he nor his wife
validly consented to the search of the house where they resided.
Rather, we conclude that the testimony at the suppression hearing
established that defendant, who was on probation, and his wife both
consented to the search (see People v Caldwell, 221 AD2d 972, 972, lv
denied 87 NY2d 920).

     Specifically, defendant contends that the search was coerced with
respect to him because he had been placed in custody. That contention
lacks merit. Although defendant was placed in custody shortly after
the arrival of the probation officers and the police at his home, a
probation officer testified that defendant gave his consent to search
the house before being placed in custody. In any event, we note that
a defendant may consent to a search even after he is placed in custody
(see People v May, 100 AD3d 1411, 1412, lv denied 20 NY3d 1063).
Here, the suppression hearing testimony established that defendant’s
                                 -2-                          1366
                                                         KA 11-00931

consent to search was obtained “ ‘without the use of any threats or
other coercive techniques’ ” (People v Shaw, 8 AD3d 1106, 1107, lv
denied 3 NY3d 681).

     Even assuming, arguendo, that defendant’s consent to search was
not valid, we conclude that the court properly determined that
defendant’s wife validly consented to the search (see Caldwell, 221
AD2d at 972). Indeed, the record establishes that defendant’s wife
was aware of the right to refuse to consent to the search (see id.),
inasmuch as she informed the police officer that she would not have
allowed the search had she thought that there were anything illegal in
the house. Finally, to the extent that defendant contends that the
court erred in crediting the testimony of the prosecution witnesses
over that of his wife, we reject that contention. “ ‘[I]t is well
settled that [t]he suppression court’s credibility determinations and
choice between conflicting inferences to be drawn from the proof are
granted deference and will not be disturbed unless unsupported by the
record’ ” (May, 100 AD3d at 1412).

     In light of our determination, we reject defendant’s further
contention that his statement to the police must be suppressed as
fruit of the poisonous tree (see generally People v Sims, 106 AD3d
1473, 1474, appeal dismissed ___ NY3d ___ [Nov. 26, 2013]).




Entered:   January 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
