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

716
KA 09-01149
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STEPHEN E. SIGL, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ERIN TUBBS OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John R.
Schwartz, A.J.), rendered November 10, 2008. The judgment convicted
defendant, upon a jury verdict, of burglary in the first degree and
sodomy in the first degree.

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of burglary in the first degree (Penal Law § 140.30 [3]) and
sodomy in the first degree (former § 130.50 [1]), defendant contends
that County Court erred in refusing to dismiss the indictment as time-
barred. We reject that contention. Contrary to defendant’s
contention, the court properly applied CPL 30.10 (4) (a) (ii), which
tolls the statute of limitations where a defendant’s “whereabouts were
continuously unknown and continuously unascertainable by the exercise
of reasonable diligence.” That statute applies where, as here, “the
police are unable to identify the perpetrator of a crime despite the
exercise of reasonable diligence or have identified the perpetrator
but cannot find him [or her] after a diligent investigation” (People v
Quinto, 18 NY3d 409, 419). Here, “[t]he record supports the court’s
determination that the identity of defendant as the sexual assailant,
and thus his whereabouts, were not ascertainable by diligent efforts”
before 2008, when the State DNA Indexing System matched the DNA
profile from the semen found on the victim’s night shirt with DNA
obtained from defendant in conjunction with an unrelated 2007
conviction (People v Jackson, 21 AD3d 1355, 1356, lv denied 6 NY3d
777, reconsideration denied 7 NY3d 757).

     Contrary to defendant’s further contention, the court properly
refused to suppress the statements he made to the police. Defendant
contends, inter alia, that the statements should have been suppressed
                                 -2-                          716
                                                        KA 09-01149

on the ground that they were the product of an arrest made inside his
home without a warrant in violation of his rights as set forth in
Payton v New York (445 US 573). We agree with the court that Payton
does not apply because defendant was not arrested inside his apartment
but, rather, he voluntarily agreed to accompany the officers to the
police station. Even assuming, arguendo, that there was a warrantless
arrest of defendant in his apartment, we note that it is well settled
that “tacit consent by a person with apparent authority . . . [is]
sufficient to obviate any possible violation of the Payton rule”
(People v Schof, 136 AD2d 578, 579, lv denied 71 NY2d 1033; see
generally Schneckloth v Bustamonte, 412 US 218, 219). Here, the
People established that the police officers entered the apartment with
the consent of defendant’s father (see People v Johnson, 46 AD3d 276,
276-277, lv denied 10 NY3d 865; People v Barnhill, 34 AD3d 933, 934,
lv denied 8 NY3d 843; People v Smith, 239 AD2d 219, 220-221, lv denied
90 NY2d 911). Although “the police may not have received express
permission to enter the premises, [the] gesture [of defendant’s
father] of opening the door, leaving it wide open, and then walking
away from it could certainly be interpreted by the police to consist
of tacit approval for them to enter” (People v Brown, 234 AD2d 211,
213, affd 91 NY2d 854).

     Finally, viewing the evidence in light of the elements of the
crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495).
“Although a different result would not have been unreasonable, the
jury was in the best position to assess the credibility of the
witnesses and, on this record, it cannot be said that the jury failed
to give the evidence the weight it should be accorded” (People v Orta,
12 AD3d 1147, 1147, lv denied 4 NY3d 801).




Entered:   June 14, 2013                       Frances E. Cafarell
                                               Clerk of the Court
