At page 607 of his mother. Consent can be established by conduct as well as by words (see, People v Abrams, 95 AD2d 155, 157; United States v Griffin, 530 F2d 739), and…4 citing cases
- People v. Gentry, 2023 NY Slip Op 03818 (N.Y. App. Div. 3d Dep't 2023).publishedIt is well settled that "stepping aside from the door to admit the officers is enough to establish consent" ( People v Vazquez , 206 AD3d 1621, 1623 [4th Dept 2022] [internal quotation marks and citation omitted], lv denied 39 NY3d 965 [20…
- People v. Colon, 151 A.D.3d 1915 (N.Y. App. Div. 4th Dep't 2017).publishedInasmuch as consent may be established by conduct (see People v Huff, 133 AD3d 1223 , 1223 [2015], lv denied 27 NY3d 999 [2016]; People v Sinzheimer, 15 AD3d 732, 734 [2005], lv denied 5 NY3d 794 [2005]), we conclude that defendant’s girlf…
- People of State of New York v. Xochimitl, 147 A.D.3d 793 (N.Y. App. Div. 2d Dep't 2017).publishedWhile courts have recognized under different facts and circumstances that consent to enter a home may be given by certain gestures such as stepping aside from a door (see People v Lopez, 104 AD3d 876, 876 [2013] [the defendant opened a mot…
- People v. Alston, 122 A.D.3d 934 (N.Y. App. Div. 2d Dep't 2014).publishedIn any event, even if the defendant *936 said that his driver license was at the security office, his failure to object when the officer left the trauma room thereafter cannot be deemed to constitute tacit consent, as the officer was no lo…
At page 606 � Appeal by the defendant from a judgment of the Supreme Court, Queens County (Naro, J.), rendered September 18, 1981, convicting him of manslaughter in the…2 citing cases
- People v. Bunce, 141 A.D.3d 536 (N.Y. App. Div. 2d Dep't 2016).published“Where a person with ostensible authority consents to police presence on the premises, either explicitly or tacitly, the right to be secure against warrantless arrests in private premises as expressed in Payton v New York ( 445 US 573 [198…
- Matter of Gilbert M., 127 A.D.3d 642 (N.Y. App. Div. 1st Dep't 2015).publishedPeople v Davis, 120 AD2d 606, 606-607 [2d Dept 1986], lv denied 68 NY2d 769 [1986]).
Other citing cases
- People v. Leandry, 130 A.D.2d 351 (N.Y. App. Div. 1st Dep't 1987).published
v.
Bernard Davis
— Appeal by the defendant from a judgment of the Supreme Court, Queens County (Naro, J.), rendered September 18, 1981, convicting him of manslaughter in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Browne, J.), after a hearing, of that branch of the defendant’s omnibus motion which was to suppress the defendant’s statements to the police.
Judgment affirmed.
The defendant asserts that his warrantless arrest was illegal because it was based on information supplied by informants whose reliability was unproven. This contention is not disputed by the People and is unquestionably correct (see, People v Johnson, 66 NY2d 398).
The People argue, however, that certain incriminating statements made by the defendant after his arrest were nevertheless properly admitted into evidence since the taint caused by the illegal arrest had dissipated by the time the defendant made such statements. We agree.
A review of the record reveals that the defendant first spoke to police at 1:30 or 2:00 p.m., approximately 4 to 6 hours after his arrest, which had occurred at 8:00, or possibly as late as 9:30 that morning. More importantly, the defendant’s first statement to police came only after a codefendant, who had been arrested at a different time and place, made an independent statement to police which implicated the defendant in the homicide. Thus, any taint caused by the illegal arrest was fully dissipated before the defendant made any statements to the police (see, People v Mas, 110 AD2d 915, 916; People v Matos, 93 AD2d 772; People v Emrick, 89 AD2d 787, 788; cf. People v Gordon, 87 AD2d 636).
The defendant also contends that he was arrested at his home in violation of the rule of Payton v New York (445 US 573). We disagree. The evidence in the record establishes that the police entered into the defendant’s home with the consent[*607] of his mother. Consent can be established by conduct as well as by words (see, People v Abrams, 95 AD2d 155, 157; United States v Griffin, 530 F2d 739), and the defendant’s mother’s conduct in stepping aside from the door to admit the officers is enough to establish consent (see, People v Taylor, 111 AD2d 520). Moreover, even if there were a Payton violation in this case, for the reasons addressed in connection with the illegal arrest the resulting taint would have been fully attenuated by the time the defendant made his statements (see also, People v Miller, 105 AD2d 1127; People v Graham, 90 AD2d 198).
We have examined the defendant’s remaining contentions and find them to be without merit. Lazer, J. P., Bracken, Brown and Kooper, JJ., concur.