In re Leroy M.

Nardelli, J.,

dissents in a memorandum as follows: Regardless *503of whether the initial police entry into the dwelling was illegal, the ultimate determination of this appeal turns solely on whether the actions of the police in going up the stairs to appellant’s room were attenuated by virtue of the unequivocally voluntary invitation by appellant’s sister welcoming the police presence. Since I believe that the record fully supports a finding that these subsequent police actions were justified, I would affirm the order of disposition.

Appellant’s sister, who was 23 years old, had every right to expect privacy in the house in which she lived, and certainly had the right to assert her expectations of privacy to an uninvited individual such as a uniformed police officer, who was the first person that she saw entering the living room as she came down the stairs.

Instead of saying “Stay out,” or “What are you doing here?” she said, without hesitation, “Thank God you’re all here.” Equally revealing, she further testified: “Me and [the officer] started talking . . . And then he was, like ... all right what’s the matter, why did I say thank God that they’re here. I was like me and my brother was arguing, he was disrespecting my mother and like eventually I was going to call them anyway, if he kept it up so I was like thank God you’re all here.” (Emphasis supplied.)

This testimony came in a courtroom, two months after the incident, at a time when her brother was facing delinquency charges. Notwithstanding the serious consequences for her brother, she did not attempt to dilute the circumstances surrounding her initial encounter with the police, by, for instance, intimating that she was intimidated by the police presence into inviting them upstairs. Indeed, even on cross examination, she acknowledged that she had been happy the police “were there.”

There is no doubt that when law enforcement officials seek to justify a warrantless search, they are “not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over . . . the premises or effects sought to be inspected” (United States v Matlock, 415 US 164, 171 [1974]). Since the police were invited into the house by one of its occupants, a person who had reached the age of majority, the ensuing search was proper.

The majority concludes that the search was not attenuated by the sister’s consent. The two cases it cites where the court found that attenuation did not exist, however, involved circumstances where the defendant himself gave the consent to police intrusion after initial illegal police conduct. For instance, in People v *504Borges (69 NY2d 1031 [1987]), the defendant was concededly arrested illegally, and the court directed a suppression hearing to ascertain whether the consent he gave to a subsequent search of his apartment “was sufficiently an act of free will to purge the primary taint of the illegal arrest” (id. at 1033). Likewise, in People v Packer (49 AD3d 184 [2008], affd 10 NY3d 915 [2008]), the court granted suppression of a knife after a defendant had given consent to a search of his bag, after he himself had been the subject of an initial illegal frisk. In this case the consent was given not by the subject of the police action, but by a party who clearly acted voluntarily and without intimidation. It is evident that there was no “official coercion, actual or implicit, overt or subtle” (see People v Gonzalez, 39 NY2d 122, 128 [1976]). Indeed, in this case, appellant’s sister freely welcomed the police presence, and stated in her testimony that she was going to call the police anyway. I see no reason not to take her at her word, at least for purposes of ascertaining whether attenuation has been established.