People v. Hughes

• Decision Date: 14 March 1988
• Parties: The PEOPLE, etc., Respondent, v. Howard HUGHES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 130

526 N.Y.S.2d 130

138 A.D.2d 523

The PEOPLE, etc., Respondent, v. Howard HUGHES, Appellant.

Supreme Court, Appellate Division,

Second Department.

March 14, 1988.

John F. Clennan, Ronkonkoma, for appellant.

Howard Hughes, pro se.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Robin Bernstein and Sherry Chase-Conant, of counsel), for respondent.

Before KUNZEMAN, J.P., and EIBER, KOOPER and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (DeLury, J.), rendered May 2, 1980, convicting him of murder in the second degree, manslaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

For the first time on appeal, the defendant contends that suppression of his jacket was improperly denied because it was seized incident to a nonconsensual, warrantless search, absent any exigent circumstances ( see, Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639). The issue of lack of consent was raised neither at the pretrial hearings nor at the hearing held midway into the trial and is therefore unpreserved for our review ( see, People v. Martin, 50 N.Y.2d 1029, 431 N.Y.S.2d 689, 409 N.E.2d 1363). Nor does the interest of justice compel a reversal on the record before us which reveals that the defendant's mother knowingly consented to the police's entry into the apartment. The record is devoid of any inference of coercion or misrepresentation. Thus, when the officer saw the orange jacket at the foot of the bed and told the defendant to put it on after the defendant indicated it was his jacket, the seizure was justified under the voluntary consent exception to the warrant requirement and under the seizure incident to arrest exception ( see, People v. Knapp, 52 N.Y.2d 689, 439 N.Y.S.2d 871, 422 N.E.2d 531; People v. Gonzalez, 39 N.Y.2d 122, 383 N.Y.S.2d 215, 347 N.E.2d 575; People v. Singleteary, 35 N.Y.2d 528, 364 N.Y.S.2d 435, 324 N.E.2d 103; People v. Brosnan, 32 N.Y.2d 254, 344 N.Y.S.2d 900, 298 N.E.2d 78; People v. Carter, 30 N.Y.2d 279, 332 N.Y.S.2d 865, 283 N.E.2d 746). The defendant testified that the jacket was taken from his closed closet. However, conflicting inferences are to be decided by the trier of fact and we do not find that the hearing court's determination to credit the officer's testimony over that of the defendant was unsupportable as a matter of law ( see, People v. Yukl, 25 N.Y.2d 585, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89; People v. Nieves, 102 A.D.2d 858, 476 N.Y.S.2d 632).

The alleged errors with respect to the court's charge were neither excepted to at the trial nor were specific requests to charge made. Therefore, the asserted errors are unpreserved for our review (see, CPL 470.05[2]; ...