| People v Dean |
| 2007 NY Slip Op 10417 [46 AD3d 1229] |
| December 27, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v Jeffrey Dean,Respondent. |
—[*1] Jaime C. Louridas, Schenectady, for respondent.
Carpinello, J. Appeal from an order of the County Court of Greene County (Pulver, Jr., J.),entered September 14, 2006, which granted defendant's motion to suppress certain evidence anddismissed the indictment.
Defendant was indicted on one count each of criminal possession of a controlled substance inthe fourth degree and criminal possession of a weapon in the third degree stemming fromevidence that drugs and a weapon were found on his person when arrested on the night of May24, 2005. The arrest took place inside a rental cabin owned by Louis Rolleri. This appeal by thePeople follows a successful defense motion to suppress this seized evidence and dismiss theindictment.[FN*]
Evidence at the suppression hearing established that Rolleri owns a multiunit rental building,as well as the subject cabin, on property in Greene County. For the better part of a [*2]decade, Rolleri placed his nephew in charge of the property anytime he was away for an extended period of time. The middle of May 2005 was one such timeperiod. In particular, Rolleri had asked his nephew to clean out and rerent the cabin after thecurrent tenant departed.
During the uncle's absence, concerns arose that the cabin was still being occupied eventhough the tenant had supposedly moved out. The nephew, after confirming that the tenant had infact moved out of town, conferred with Rolleri, who reiterated that no one was supposed to beliving in the cabin and directed him to take whatever steps necessary to remove "whoever was[there]." Thus, on the day in question, the nephew contacted the State Police. He explained to aninvestigating trooper that he was the caretaker for the property in his uncle's absence, that thecabin was supposed to be empty, that unknown people had been observed showing up late atnight and that he had confirmed that the previous tenant had left town. Afraid to go inside thecabin alone, the nephew requested that the trooper go in and get the intruders out.
Armed with this information, the trooper went to the property with the nephew. As thetrooper pulled up and activated his lights, he observed a person inside running away from thewindow. Unsure at that time whether an ongoing burglary was in progress or just a criminaltrespass, this conduct heightened the trooper's concern. The trooper knocked on the door.Although he heard someone unlock the deadbolt, no one opened it. He then let himself inside asthe nephew waited on the porch. He very quickly came upon defendant, who was in an agitatedstate, speaking loudly and incoherently and appeared to be under the influence of drugs.Primarily out of concern for his own safety, the trooper placed handcuffs on defendant andadvised him that he was under arrest for criminal trespass. Nearly simultaneously, he alsoobserved a glass tube with jagged edges protruding out of defendant's pocket and drugparaphernalia inside the cabin itself. He removed the glass tube at which time he observedevidence of drugs on it as well. Upon searching defendant incident to the arrest, the subjectcocaine and weapon were retrieved.
It is well settled that the police may lawfully conduct a warrantless search of a premiseswhen they have obtained the voluntary consent of a party who possesses the requisite degree ofauthority and control over it (see People v Adams, 53 NY2d 1, 8 [1981], certdenied 454 US 854 [1981]; People v Cosme, 48 NY2d 286, 290 [1979]; see alsoUnited States v Matlock, 415 US 164, 171 [1974]). Moreover, "where the searching officersrely in good faith on the apparent capability of an individual to consent to a search and thecircumstances reasonably indicate that that individual does, in fact, have the authority to consent,evidence obtained as the result of such a search should not be suppressed" (People vAdams, 53 NY2d at 9; see Illinois v Rodriguez, 497 US 177, 183-186 [1990]).
Here, "based upon an objective view of the circumstances present" (People v Adams,53 NY2d at 9), the trooper's belief that the nephew, as the caretaker of the property, hadauthority to consent to the search of a rental unit that was supposed to be vacant was reasonable(see id.; People v McMahon, 238 AD2d 834, 836 [1997]; People vCampbell, 215 AD2d 120 [1995], affd 87 NY2d 855 [1995]; compare People vGonzalez, 88 NY2d 289, 295 [1996]). Stated otherwise, it was reasonable to conclude thatthe nephew had authority to permit the trooper to enter a rental unit that he, as well as Rolleri,believed to be empty to investigate the complaint of intruders inside (see People v McMahon,supra). While defendant apparently believed he had a right to live in the cabin based on analleged oral sublease with the departing tenant, this arrangement was never conveyed to Rollerior the nephew; thus, their rights, as property owner and caretaker, respectively, to permit accessinside the cabin remained intact (compare People v Ponto, 103 [*3]AD2d 573 [1984]).
Cardona, P.J., Mercure, Crew III and Lahtinen, JJ., concur. Ordered that the order isreversed, on the law, motion denied and matter remitted to the County Court of Greene Countyfor further proceedings not inconsistent with this Court's decision.
Footnote *: At the Mapp hearing,the People stipulated that defendant had standing to challenge the search.