PEOPLE v. PERKINS (2009)

Judgment, Supreme Court, New York County (Charles J. Tejada, J. at hearing;  Edward J. McLaughlin, J. at jury trial and sentence), rendered May 20, 2008, convicting defendant of robbery in the second degree (five counts), burglary in the first degree, and burglary in the second degree (two counts), and sentencing him, as a persistent violent felony offender, to an aggregate term of 100 years to life, unanimously modified, as a matter of discretion in the interest of justice, to the extent of directing that the sentences for the convictions of second-degree robbery under the first and second counts of the indictment be served concurrently with each other and with all other sentences, resulting in a new aggregate term of 50 years to life, and otherwise affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).   There is no basis for disturbing the jury's determinations concerning identification and credibility.   Defendant was reliably identified by crime victims, inculpated by an acquaintance, and connected to the crimes by extensive circumstantial evidence including cell phone records.   The physical injury element of first-degree burglary was established by evidence that defendant hit the victim on the nose with a pistol and knocked her down, causing bruising and pain in her nose and shoulder which led her to take pain relievers for a week.   The jury could reasonably infer that these injuries caused “more than slight or trivial pain” (People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] ), and went beyond “petty slaps, shoves, kicks and the like” (Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358 [1980] ).

 The court properly denied defendant's suppression motion.   Defendant's sister consented to a search of her apartment, where defendant had been temporarily living.   In a closet, the police found an imitation pistol, along with clothing belonging to defendant, wrapped in a bedsheet.   For the first time on appeal, defendant argues that his sister lacked actual or apparent authority to consent to a search of this bundle, which he characterizes as a container holding his personal belongings (see People v. Gonzalez, 88 N.Y.2d 289, 644 N.Y.S.2d 673, 667 N.E.2d 323 [1996] ).   Defendant's only suppression argument was that the seizure was the fruit of an unlawful arrest.   Accordingly, the People were never placed on notice of any need to develop the record as to the status of the bundle and the sister's actual or apparent authority to consent to its examination by the police (see People v. Martin, 50 N.Y.2d 1029, 431 N.Y.S.2d 689, 409 N.E.2d 1363 [1980];  People v. Tutt, 38 N.Y.2d 1011, 384 N.Y.S.2d 444, 348 N.E.2d 920 [1976] ).   While the hearing court stated in its decision that the sister had authority to consent to a search of her apartment, that did not “expressly decide[ ]” (CPL 470.05[2] ) the issue presented on appeal.   Moreover, even the court's limited ruling on the question of consent was not made in response to a protest by a party (see People v. Colon, 46 A.D.3d 260, 263, 847 N.Y.S.2d 44 [2007] ).   We decline to review this unpreserved issue in the interest of justice.   As an alternative holding, we find that, to the extent the hearing record permits review, it establishes that the sister possessed, or at least reasonably appeared to possess, common authority with defendant over the closet and its contents, including the bundled bedsheet (see People v. Loomis, 17 A.D.3d 1019, 794 N.Y.S.2d 220 [2005], lv. denied 5 N.Y.3d 830, 804 N.Y.S.2d 44, 837 N.E.2d 743 [2005];  People v. Castillo, 131 A.D.2d 495, 496, 515 N.Y.S.2d 886 [1987], lv. denied 70 N.Y.2d 749, 520 N.Y.S.2d 1025, 514 N.E.2d 1377 [1987] ).

We find the sentence excessive to the extent indicated.