PEOPLE v. GIRDLER

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

The PEOPLE, etc., respondent, v. Jason GIRDLER, appellant.

Decided: April 29, 2008

ROBERT A. LIFSON, J.P., JOSEPH COVELLO, DANIEL D. ANGIOLILLO, and JOHN M. LEVENTHAL, JJ. Alan Katz, Garden City, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Ilisa T. Fleischer and Valentina M. Tejera of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (Quinn, J.), rendered October 20, 2006, convicting him of robbery in the second degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (LaPera, J.), pursuant to stipulation in lieu of motions, of the suppression of the defendant's statements to law enforcement officials after he was arrested in his home without a warrant.

ORDERED that the judgment is affirmed.

The People met their burden of establishing that the police officers' initial warrantless entry into the upper level of the defendant's home was made with consent (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;  People v. Perea, 182 A.D.2d 718, 719, 582 N.Y.S.2d 267), and that their subsequent entry into the lower level of the home, where the defendant was found, was justified by exigent circumstances (see People v. Scott, 6 A.D.3d 465, 466, 774 N.Y.S.2d 349;  People v. Cartier, 149 A.D.2d 524, 525, 539 N.Y.S.2d 804, cert. denied 495 U.S. 906, 110 S.Ct. 1927, 109 L.Ed.2d 290;  People v. Green, 103 A.D.2d 362, 364, 480 N.Y.S.2d 220).   In any event, since the defendant's statements were sufficiently attenuated from his arrest (see People v. Conyers, 68 N.Y.2d 982, 510 N.Y.S.2d 552, 503 N.E.2d 108), suppression of the statements was properly denied (see People v. Maharaj, 308 A.D.2d 551, 552, 764 N.Y.S.2d 836;  People v. Cooke, 299 A.D.2d 419, 420, 750 N.Y.S.2d 103).

 The defendant contends that the trial court erred in allowing the People to present evidence of his involvement in an uncharged crime without weighing the probative value of such evidence against its prejudicial effect.   Contrary to the defendant's contention, this evidence was properly admitted (see People v. Ingram, 71 N.Y.2d 474, 479-481, 527 N.Y.S.2d 363, 522 N.E.2d 439;  People v. Woodson, 31 A.D.3d 678, 679, 818 N.Y.S.2d 295;  People v. James, 19 A.D.3d 616, 617, 797 N.Y.S.2d 129;  People v. Maxwell, 299 A.D.2d 370, 750 N.Y.S.2d 97).

 Resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828).   Upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

Finally, contrary to the defendant's contention, the sentence imposed on the conviction of robbery in the second degree was not excessive (see People v. Suitte, 90 A.D.2d 80, 85-86, 455 N.Y.S.2d 675).

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