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PEOPLE v. XOCHIMITL

No. 129 SSM 17.

32 N.Y.3d 1026 (2018)

112 N.E.3d 309

87 N.Y.S.3d 132

2018 NY Slip Op 06053

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. OMAR XOCHIMITL, Appellant.

Court of Appeals of New York.

Decided September 13, 2018.

Attorney(s) appearing for the Case

Paul Skip Laisure , Appellate Advocates, New York City ( Dina Zloczower of counsel), for appellant.

Eriz Gonzalez , District Attorney, Brooklyn, ( Michael L. Brenner of counsel), for respondent.

Make the Road New York, Brooklyn ( Amy S. Taylor and Ariel Gould of counsel), and Legal Services NYC, New York City ( Christine Clarke , Veronica Cook and Edward Josephson of counsel), for Make the Road New York and another, amici curiae.

Chief Judge DiFIORE and Judges STEIN, FAHEY, GARCIA and FEINMAN concur. Judge RIVERA concurs in result in a concurring opinion, in which Judge Wilson concurs in a separate concurring opinion, in which Judge RIVERA concurs.

OPINION OF THE COURT

MEMORANDUM.

The order of the Appellate Division should be affirmed. The determination as to whether police received voluntary consent to enter the apartment is a mixed question of law and fact (see People v McFarlane, 21 N.Y.3d 1034, 1035 [2013]). "Although the voluntariness of the consent is open to dispute, our power to review affirmed findings of fact is limited. Since the finding of the...

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