Opinion
December 21, 2000.
Judgment, Supreme Court, New York County (Ira Beal, J. at suppression hearing; William Wetzel, J. at jury trial and sentence), rendered March 2, 1999, convicting defendant of criminal possession of a weapon in the second and third degrees, and sentencing him to concurrent terms of 3 1/2 to 7 years and 1 to 3 years, respectively, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence on the second-degree weapon possession conviction to a term of 2 1/4 to 4 1/2 years, and otherwise affirmed.
Brian O'Donoghue, for respondent.
Edith Blumberg, for defendant-appellant.
Before: Nardelli, J.P., Tom, Mazzarelli, Ellerin, Rubin, JJ.
Defendant's suppression motion was properly denied in all respects. There is no basis upon which to disturb the court's credibility determinations, which are supported by the record. The record establishes that no fraud or deception was employed when the officer asked defendant's mother if she would consent to a search. Moreover, the consent form she signed after the search was concluded confirmed the voluntariness of her consent. Defendant's mother reasonably appeared to have authority to consent to the search of defendant's room in the family's apartment, and there was no indication that defendant had exclusive access to the drawer from which the gun was recovered (see,People v. Gonzalez, 88 N.Y.2d 289; People v. Fayton, 276 A.D.2d 339 [October 19, 2000], 2000 N Y App. Div. LEXIS 10649).
We find the sentence excessive to the extent indicated.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.