Opinion
June 9, 1995
Appeal from the Supreme Court, Monroe County, Contiguglia, J.
Present — Lawton, J.P., Fallon, Wesley, Davis and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that the consent obtained by the police from his wife to search her car was invalid because it was coerced by the officer's statement that, if she did not give her consent, the car would be impounded and a search warrant obtained. We disagree. In People v. LaDuke ( 206 A.D.2d 859, 860), we held that a consent to search based on a threatened confiscation is not invalid when "the police had valid legal grounds to threaten defendant with forfeiture of his property." The police had probable cause to obtain a warrant for the search of the car because the car matched the detailed description given by the complainant. Thus, the consent was validly obtained.
We likewise reject the contention of defendant that his sentence must be vacated because Supreme Court based the sentence on its belief that he was guilty of rape in the first degree, despite the jury's finding that he was innocent of that charge. There is no basis to conclude that the court based its sentence on that belief (see, People v. Scallero, 122 A.D.2d 350, 352; United States v. Rodriguez-Gonzalez, 899 F.2d 177, 180-182, cert denied 498 U.S. 844; see also, United States v. Carrozza, 4 F.3d 70, 80, cert denied sub nom. Patriarca v. United States, ___ US ___, 114 S Ct 1644; United States v. Olderbak, 961 F.2d 756, 764-765, cert denied 506 U.S. 959; United States v. Averi, 922 F.2d 765, 765-766; United States v. Isom, 886 F.2d 736, 738-739; United States v. Juarez-Ortega, 866 F.2d 747, 749). The court's remarks were insufficient to establish that the court was punishing defendant for crimes other than those for which he was convicted (cf., People v. Maula, 163 A.D.2d 180, 181; People v Baez, 136 A.D.2d 451, lv denied 71 N.Y.2d 892; People v. Coward, 100 A.D.2d 628). Lastly, we conclude that, under the circumstances of this case, the sentence is neither unduly harsh nor severe.