SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
197
KA 14-00956
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ANTHONY MILLS, DEFENDANT-APPELLANT.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (Sheila A.
DiTullio, J.), rendered May 12, 2014. The judgment convicted
defendant, upon a nonjury verdict, of burglary in the second degree
(four counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him after a
nonjury trial of four counts of burglary in the second degree (Penal
Law § 140.25 [2]), defendant challenges the validity of his waiver of
a jury trial. Defendant failed to preserve that challenge for our
review (see People v Hailey, 128 AD3d 1415, 1415-1416, lv denied 26
NY3d 929; see generally People v Padro, 75 NY2d 820, 821, rearg denied
75 NY2d 1005, rearg dismissed 81 NY2d 989). In any event, we conclude
that defendant’s challenge is without merit inasmuch as “ ‘the record
establishes that defendant’s waiver was knowing, voluntary and
intelligent’ ” (Hailey, 128 AD3d at 1416; see People v Moran, 87 AD3d
1312, 1312, lv denied 19 NY3d 976).
Defendant contends that County Court erred in refusing to
suppress evidence obtained pursuant to an arrest of defendant because
the police lacked probable cause to arrest him. We reject defendant’s
contention, inasmuch as “the police had probable cause to arrest him
on the basis of statements [of his accomplice] implicating him in the
crime” (People v Luciano, 43 AD3d 1183, 1183, lv denied 9 NY3d 991;
see People v Berzups, 49 NY2d 417, 426-427; People v Fulton, 133 AD3d
1194, 1195, lv denied 26 NY3d 1109). We also reject defendant’s
contention that evidence recovered during a search of his residence
should have been suppressed on the ground that his fiancé did not
consent to the search. We conclude that the People met their burden
of establishing at the suppression hearing that the police reasonably
-2- 197
KA 14-00956
believed that defendant’s fiancé had the authority to consent to the
search of the residence (see People v Adams, 53 NY2d 1, 8, rearg
denied 54 NY2d 832, cert denied 454 US 854; People v Plumley, 111 AD3d
1418, 1419, lv denied 22 NY3d 1140), and that she voluntarily
consented to the search (see generally People v Gonzalez, 39 NY2d 122,
128; People v May, 100 AD3d 1411, 1412, lv denied 20 NY3d 1063). The
testimony of defendant’s fiancé at the suppression hearing that she
did not voluntarily consent to the search raised an issue of
credibility that the court was entitled to resolve against defendant
(see generally People v Prochilo, 41 NY2d 759, 761; People v Twillie,
28 AD3d 1236, 1237, lv denied 7 NY3d 795).
We reject defendant’s further contention that the testimony of
his accomplice was not sufficiently corroborated and thus that the
conviction is not supported by legally sufficient evidence. The
record establishes that the People presented sufficient evidence to
satisfy the corroboration requirement, including, inter alia, evidence
that several items stolen during the burglaries were found in
defendant’s residence (see CPL 60.22 [1]; People v Reome, 15 NY3d 188,
191-192; People v Cortez, 81 AD3d 742, 742-743, lv denied 16 NY3d
894). Contrary to defendant’s contention, viewing the evidence in
light of the elements of the crime of burglary in the second degree 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 People v Bleakley, 69 NY2d 490, 495).
Contrary to defendant’s further contention that corrective action
is required because the court failed to specify whether the sentences
would run consecutively or concurrently, the record establishes that
the court sentenced defendant to consecutive terms of incarceration
for the first and second counts of burglary in the second degree, and
that the sentences for the third and fourth counts would run
concurrently. Finally, the sentence is not unduly harsh or severe.
Entered: March 25, 2016 Frances E. Cafarell
Clerk of the Court