PEOPLE v. TAYLOR

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

The PEOPLE of the State of New York, Respondent, v. Larry TAYLOR, Defendant-Appellant.

Decided: November 29, 2005

BUCKLEY, P.J., MAZZARELLI, ELLERIN, CATTERSON, McGUIRE, JJ. Edward Land, New York, for appellant. Robert M. Morgenthau, District Attorney, New York (Nicholas H. Penfold of counsel), for respondent.

Judgment, Supreme Court, New York County (James A. Yates, J.), rendered July 9, 2003, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.

The court properly denied defendant's suppression motion.   The record establishes that the police entered defendant's apartment with the voluntary consent of defendant's companion, with whom he lived (see People v. Gonzalez, 39 N.Y.2d 122, 383 N.Y.S.2d 215, 347 N.E.2d 575 [1976] ).   The hearing court's finding of implied or tacit consent is supported by evidence that defendant's companion was insistent on showing the police an order of protection she claimed to have against the complainant, which she said was in the apartment, and that she did not protest when the officer accompanied her into the apartment.   The companion's conduct, viewed as a whole, demonstrated that she voluntarily brought the officer into the apartment in order to show her the order (see e.g. People v. Smith, 239 A.D.2d 219, 658 N.Y.S.2d 259 [1997], lv. denied 90 N.Y.2d 911, 663 N.Y.S.2d 523, 686 N.E.2d 235 [1997];  People v. Brown, 234 A.D.2d 211, 651 N.Y.S.2d 981 [1996], affd. 91 N.Y.2d 854, 668 N.Y.S.2d 551, 691 N.E.2d 622 [1997];  People v. Washington, 209 A.D.2d 817, 819, 619 N.Y.S.2d 360 [1994], lv. denied 85 N.Y.2d 944, 627 N.Y.S.2d 1006, 651 N.E.2d 931 [1995] ).

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning credibility (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112 [1903] ).   The fact that the jury acquitted defendant of other charges does not warrant a different conclusion (see People v. Rayam, 94 N.Y.2d 557, 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000] ).   To the extent that defendant is also making a repugnant verdict argument, that claim is unpreserved and without merit.