People v. HerrPeople v. Herr
Appeal from a judgment of the County Court of Albany County (Turner, Jr., J.), rendered June 13, 1988, upon a verdict convicting defendant
The home of Sadie Rapp in the Town of Colonie, Albany County, was burglarized in the late evening of March 11, 1987 and a Zenith television set, microwave oven, checkbook, silver crucifix and other items were taken. Several weeks later Rapp began to receive a series of anonymous obscene telephone calls during which the caller tоld her that he was the one that had burglarized her home. Through the cooperation of the Town of Colonie Police Department and the telephone company, a "trap” was placed on Rapp’s telephone, through which the obscenе calls were traced to telephones at an automobile repair shop in the Village of Menands, Albany County, and a residence at 3 Benson Street in the City of Albany. One or more of the calls were also recorded. Defendant was employed at thе automobile repair shop, whose owner informed the police that he was the only employee who lived at the Bensоn Street address. The police obtained the consent of one of the lessees at that residence, who was then defendаnt’s girlfriend, to search the premises. The search turned up the microwave oven and other stolen items. Defendant’s girlfriend informed the рolice that defendant sold a television set to a friend, from whom the stolen Zenith set was recovered. In addition to the foregoing evidence, both defendant’s girlfriend and the other woman occupying the 3 Benson Street residence identified defendant’s voicе as that of the obscene caller on the recorded telephone calls to Rapp.
Defendant raises essentiаlly two grounds for reversal. The first of these is that County Court should have suppressed the evidence seized at 3 Benson Street. In our view, howеver, County Court was correct in upholding the seizure on the ground that a valid consent to search had been obtained from defendаnt’s girlfriend. We reject defendant’s argument, made for the first time on appeal, that the search of the Benson Street residence was invalid because the consent of defendant’s girlfriend was obtained by coercion, namely, a threat by the police that she would otherwise be charged with criminal possession of stolen property and that her child would be taken from her. However, this evidеnce was never brought out at the suppression hearing. Instead, it was elicited for the first time by defense counsel at the trial itself on cross-examination of the girlfriend, who by then had married defendant. Having failed to advance this factual basis for invalidating the search during the suppression hearing, defendant is precluded from
Alternatively, defendant argues that he was denied the effective assistancе of counsel. Defendant points to the failure of the Public Defender’s office to raise at the suppression hearing the issue оf the previously described coercive threat by the police in obtaining the consent of defendant’s then-girlfriend to search and for the failure to make a formal motion to dismiss the indictment on the ground of a denial of defendant’s rights to a speedy trial. However, there is nothing in the record which demonstrates that defense counsel at the suppression hearing had been made aware оf the subsequent claim that the police threatened defendant’s girlfriend with criminal prosecution and the loss of her child. The record of the suppression hearing suggests to the contrary, since defendant’s cross-examination of the police officer who obtained the consent explored whether the girlfriend was told that if she failed to consent "we’re going to go back to the judge and get a search warrant and we’ll go through the whole house and who knows what we’ll find”. Moreover, the testimony of the girlfriend (later wife) of defendant confirmed both on direct and redirect examination by the prosecution that she voluntarily consented to the search because she had "nothing to hide”. Thus, it is highly improbable that the facts now relied upon by defendant, even if timely disclosed to his attorney, would have changed the result of the suppression hearing. Under all of these circumstances, the record is insufficient to establish that defеnse counsel’s conduct at the suppression hearing constituted ineffective assistance (see, People v Rivera,
Likewise unavailing to establish ineffeсtive representation is the failure to make a formal speedy trial motion. In fact, an oral motion to dismiss on this ground was made before the trial commenced, was entertained by County Court and denied because "the case has been marked ready on а timely basis by the month on the record”, and the delay was attributable to calendar congestion. Thus, the failure to have moved formаlly at an earlier point for dismissal did not constitute ineffective representation (see, People v Douglas,
Finally in support of his claim that he was denied the right to counsel, defendant contends that County Court erred in failing to make inquiries as to a conflict between defendant and the Assistant Publiс Defender representing him, and as to the adequacy of representation, in response to defendant’s
Judgment affirmed. Mahoney, P. J., Kane, Weiss, Levine and Mercure, JJ., concur.