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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. William CORNIEL, Appellant.

Decided: February 25, 1999

Before:  CARDONA, P.J., MIKOLL, MERCURE, CREW III and YESAWICH JR., JJ. James A. Baker, Ithaca, for appellant. George M. Dentes, District Attorney (Gary U. Surdell of counsel), Ithaca, for respondent.

Appeal from a judgment of the County Court of Tompkins County (Sherman, J.), rendered May 23, 1997, upon a verdict convicting defendant of the crime of assault in the first degree.

This appeal relates to a stabbing on August 15, 1996 of the victim, Steven Henderson, which resulted in the arrest and conviction of defendant for assault in the first degree.1  The issues raised on appeal relate to the locating and questioning of defendant after the incident and events occurring at the trial stage.

Police obtained a statement from John Nelson, one of the persons on the scene of the stabbing, implicating defendant under the name of “Renee Cruz” as the person who stabbed Henderson.   Police then tracked Cruz to an area medical center where he had undergone treatment and, using a Grand Jury subpoena, found his real name to be William Renee Corniel and also located his New York City home address.   Police investigators, together with four other officers, proceeded to the New York City address to question defendant about the incident.   They intended, if possible, to have defendant accompany them to the police station without arresting him.   The officers were let into the apartment by defendant's father and permitted to look for defendant.   The father said he did not know if defendant had come home the prior night.   Defendant was found hiding under a bed.

Defendant was requested to accompany the police to the police station to discuss the stabbing in Ithaca.   He acquiesced and he and his father accompanied the officers to the station.   He was neither shackled, nor formally arrested.   At the station he was given Miranda warnings and proceeded to state that he had stabbed Henderson in self-defense after an altercation with him.   Defendant was subsequently charged with murder in the second degree (Penal Law § 125.25[2] ) and assault in the first degree (Penal Law § 120.10[1], [3] ).   Defendant was convicted of the assault in the first degree charge by a jury and sentenced to an indeterminate term of imprisonment of 7 to 14 years.

Defendant raises several challenges to his conviction which we address ad seriatim.   Defendant contends that County Court erred in denying his motion to suppress defendant's statements on the ground that the oral and written statements given by defendant were the product of an illegal and forced entry into defendant's home and should be suppressed.

 It is fundamental that the police may not conduct a search of a private residence without first obtaining a search warrant unless their entry is a result of a voluntary consent of a party possessing the requisite authority or control over the premises to be inspected (see, People v. Adams, 53 N.Y.2d 1, 8, 439 N.Y.S.2d 877, 422 N.E.2d 537, cert. denied 454 U.S. 854, 102 S.Ct. 301, 70 L.Ed.2d 148).   The police testified that defendant's father invited them in.   County Court found that the father possessed the authority to consent to the entrance of police into the residence (see, People v. Travis OO., 237 A.D.2d 646, 647, 654 N.Y.S.2d 467) and that his consent was voluntarily given, without police coercion.   Given the fact that great weight is accorded to the finding of the suppression court (People v. Pugh, 246 A.D.2d 679, 681, 667 N.Y.S.2d 465, lv. denied 92 N.Y.2d 882, 678 N.Y.S.2d 29, 700 N.E.2d 567), we affirm the court's finding that the father was not coerced by the officers into giving consent to search the apartment.   Notwithstanding some conflicting testimony of the events offered by defendant's brother, we find that suppression, based on illegal entry, was properly denied (see, People v. Washington, 209 A.D.2d 817, 818-819, 619 N.Y.S.2d 360, lv. denied 85 N.Y.2d 944, 627 N.Y.S.2d 1006, 651 N.E.2d 931).

 Defendant next contends that he was illegally arrested at his father's apartment and forced to accompany the police to the station house.   While the People challenge defendant's contention that he was arrested at his father's home, this argument should not detain us unduly, since at that point the police had probable cause to arrest the defendant in any event, although we conclude from the record that the arrest did not occur until after defendant gave his statement to the police.   He was accorded his Miranda rights and the statements he made were not tainted by any illegal procedure (see, People v. Hardy, 187 A.D.2d 810, 812, 589 N.Y.S.2d 966).

 Defendant contends that the police illegally utilized a Grand Jury subpoena to obtain defendant's medical records and seeks preclusion of evidence secured as a result thereof, namely, his oral and written statements made to police.   We decline to hypothesize as to this issue.   The subpoena was never before the court.   Having failed to develop the facts on record, defendant has not preserved the issue for our review.

 Defendant next challenges the introduction of a graphic photograph picturing the victim's chest cavity taken after an autopsy as prejudicial to him, depriving him of a fair trial.   The photo was introduced in support of the People's contention that the knife wound inflicted by defendant caused Henderson's death.   We thus conclude that the photo was not introduced for prejudicial purposes, that is, for its shock value.   As defendant was ultimately found not guilty of the murder charge, any inference of prejudice to defendant is undercut.   In any event, we find no abuse of discretion by the court in permitting its introduction into evidence (see, People v. Mastropietro, 232 A.D.2d 725, 726, 648 N.Y.S.2d 752, lv. denied 89 N.Y.2d 1038, 659 N.Y.S.2d 869, 681 N.E.2d 1316).

 Defendant also challenges the propriety of the People's allusion to defendant's involvement in drug activity in Ithaca with Guillermo Payano in whose apartment he was staying while in Ithaca.   We find the allusions were properly made to show a potential motive arising out of Henderson's involvement in a prior attack on Payano and Nelson, which prompted the subsequent stabbing of Henderson by defendant.   The evidence tended to undermine defendant's self-defense theory and affirmed the People's contention that the stabbing was part of a drug feud.   We conclude that this evidence was not presented to establish defendant's propensity to commit the crime charged, but was rather used to give factual context and motive to defendant's stabbing of Henderson which the People urged constituted murder in the second degree and assault in the first degree.   The evidence bore on the motive and state of mind of the defendant (see, People v. Ventimiglia, 52 N.Y.2d 350, 359, 438 N.Y.S.2d 261, 420 N.E.2d 59) and constituted fair comment on the evidence.

 We find no merit to defendant's contention that the People's summation was improper, denying him a fair trial.   It constituted fair comment and was an appropriate response to defendant's version of the case (see, People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564;  People v. Barber, 231 A.D.2d 835, 647 N.Y.S.2d 590).   County Court's instructions limited the impact of the comments of the parties and put them in proper perspective.

 Finally, we find no merit to defendant's contention that the sentence imposed was too harsh.   The sentence was within statutory limits and in view of the intentional stabbing of the victim in the back and his eventual death from the wound, the penalty was appropriate.   We find no abuse of discretion or extraordinary circumstances warranting modification.

ORDERED that the judgment is affirmed.


1.   Henderson eventually died of complications related to the stab wound in October 1996.



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Decided: February 25, 1999

Court: Supreme Court, Appellate Division, Third Department, New York.

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