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

827
KA 11-01063
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CEDRIC COBB, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Matthew J.
Murphy, III, J.), rendered April 13, 2011. The judgment convicted
defendant, after a nonjury trial, of criminal possession of a
controlled substance in the third degree, criminal possession of a
controlled substance in the fourth degree and unlawful possession of
marihuana.

     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, inter alia, criminal possession of a
controlled substance in the third degree (Penal Law § 220.16 [1]) and
criminal possession of a controlled substance in the fourth degree (§
220.09 [1]). We agree with defendant that County Court erred in
refusing to suppress the statement that he made to the police. At the
conclusion of the suppression hearing, defendant challenged the
admissibility of the statement on the ground that the People failed to
establish that the police officer who questioned him advised him that
he had the right to remain silent. Although the court refused to
suppress the statement “based on a determination that the warnings
given were legally sufficient, examination of the transcript of the
hearing discloses the absence of any proof that the component of the
warnings specifically identified by [defendant] had been given,” and
thus the statement should have been suppressed (People v Hutchinson,
59 NY2d 923, 924-925; see People v Gomez, 192 AD2d 549, 550, lv denied
82 NY2d 806).

     Nevertheless, we affirm the judgment because that error is
harmless beyond a reasonable doubt (see People v Chatman, 38 AD3d
1282, 1283, lv denied 8 NY3d 983; People v Thompson, 295 AD2d 917,
918, lv denied 98 NY2d 772; see generally People v Crimmins, 36 NY2d
                                 -2-                              827
                                                            KA 11-01063

230, 237). The only statement made by defendant after the
administration of the incomplete Miranda warnings was his admission
that he lived in the apartment in which he was arrested. Defendant
was arrested inside the apartment, however, by officers executing a
warrant for his arrest at that location, and he was the only person
present in the apartment at the time. Another officer was located by
the rear of the apartment to prevent any escape attempt, and he
observed someone throw a bag of crack cocaine from a bedroom window as
the apprehending officers approached the bedroom from inside the
apartment. Immediately thereafter, defendant was apprehended as he
left that bedroom. In defendant’s grand jury testimony, which was
admitted in evidence at trial, he stated that he was the only person
present in the apartment when the officers entered. At trial,
officers testified that the amount of crack cocaine possessed was
inconsistent with individual use, and that no paraphernalia for using
crack cocaine was found in the apartment. The evidence at trial
further established that defendant was apprehended leaving a bedroom
in which a digital scale was discovered, and that such scales are
commonly used to package drugs for sale. In addition, defendant
spontaneously stated, “this is[] nothing, it’s my first felony, I’ll
get probation,” and he has not challenged the admissibility of that
statement. Consequently, the evidence of defendant’s guilt is
overwhelming, and there is no reasonable possibility that the
erroneous admission of the statement at issue contributed to the
conviction (see generally Crimmins, 36 NY2d at 237; People v Bastian,
294 AD2d 882, 884, lv denied 98 NY2d 694).

     The sentence is not unduly harsh or severe.




Entered:   July 6, 2012                            Frances E. Cafarell
                                                   Clerk of the Court
