| People v Johnson |
| 2012 NY Slip Op 03317 [94 AD3d 1529] |
| April 27, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James D.Johnson, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Susan C. Azzarelli of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered August 1, 2008. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his guilty plea, ofcriminal possession of a controlled substance in the third degree (Penal Law § 220.16[12]). The conviction was based on defendant's possession of cocaine that was found by a paroleofficer in the center console of a motor vehicle driven by defendant shortly before the vehiclewas searched. Defendant moved to suppress the cocaine, contending that the warrantless searchwas not supported by probable cause. In denying the motion, Supreme Court determined as apreliminary matter that, because defendant did not own the vehicle, he failed to establish that hehad standing to contest the search of the vehicle. The court in any event concluded that the searchwas lawful because it was rationally and reasonably related to the performance of the duties ofdefendant's parole officer, and that defendant's status as a parolee was not exploited as a pretextfor what would otherwise be an unlawful police-initiated search. Defendant thereafter entered aguilty plea, and on appeal he contends that the court erred in denying his suppression motion. Weaffirm.
On the evening in question, defendant's parole officer was working with a joint task forceinvolving the Division of Parole, the Onondaga County Department of Probation, the OnondagaCounty Sheriff's Department, the Syracuse Police Department and the New York State Police.The joint task force, consisting of between 12 and 14 law enforcement officials, had a list of atleast 15 parolees and probationers to be searched, and defendant's name was on that list. As acondition of his parole, defendant had consented to searches of his residence, property andperson. Defendant's parole officer testified at the suppression hearing that he included defendanton the list of parolees to be searched because, among other reasons, defendant had recentlymoved into a new apartment that had not yet been inspected by the parole officer.
Defendant's parole officer and a fellow parole officer arrived at defendant's apartment [*2]shortly before his 9:00 p.m. curfew, but defendant was not there.Defendant arrived minutes later in a motor vehicle he was operating, with no passengers. Uponparking in the lot next to his apartment, defendant exited the vehicle and locked the doors. Hewas then approached by the parole officers, who explained that they were there to inspect hisresidence. Defendant's parole officer notified the other members of the joint task force, who werewaiting nearby and arrived momentarily. Upon entering his apartment with the officers,defendant placed the keys to the vehicle on a table before he was handcuffed for safety reasons.The officers proceeded to search the apartment, finding therein a digital scale and $839 but nocontraband. While the apartment was being searched, one of the parole officers took the keys tothe vehicle from the table and used them to open the vehicle, which he then searched. The paroleofficer found cocaine weighing more than one half of an ounce in the false bottom of a beveragecontainer located in the center console, along with marihuana and $572 in cash.
We agree with defendant that the court erred in determining that he lacked standing tocontest the legality of the search of the vehicle. Although "a defendant seeking to suppressevidence, on the basis that it was obtained by means of an illegal search, must allege standing tochallenge the search and, if the allegation is disputed, must establish standing"(People v Carter, 86 NY2d 721, 722-723 [1995], rearg denied 86 NY2d 839[1995] [emphasis added]), here at no time did the People contend that defendant lacked standingto challenge the search (see People vHunter, 17 NY3d 725, 726 [2011]). "Since the issue of defendant's standing was notraised, the court had no occasion to rule on that issue" (id. at 727). In any event, theevidence adduced at the hearing by the People established that defendant was the sole occupantof the vehicle, which he parked directly outside of his apartment in a private parking lot and thenlocked before he was approached by his parole officer. We conclude, based on that evidence, thatdefendant had "a possessory interest in, dominion and control over and the right to exclude othersfrom the vehicle" sufficient to convey standing (People v Banks, 85 NY2d 558, 561[1995], cert denied 516 US 868 [1995]). Although there was no evidence that defendantowned the vehicle in question, it is well settled that a person may have a legitimate expectationof privacy in a vehicle that he or she does not own (see generally id. at 561-562).
We nevertheless agree with the court's further determination that the search of the vehiclewas lawful. A parolee's "right to be free from unreasonable searches and seizures, guaranteed by[the] State Constitution[ ] . . . , remains inviolate" (People ex rel. Piccarillo vNew York State Bd. of Parole, 48 NY2d 76, 82 [1979]). Nonetheless, "in any evaluation ofthe reasonableness of a particular search or seizure the fact of defendant's status as a parolee isalways relevant and may be critical; what may be unreasonable with respect to an individual whois not on parole may be reasonable with respect to one who is" (People v Huntley, 43NY2d 175, 181 [1977]). Here, we conclude that the record supports the court's determination thatthe search was "rationally and reasonably related to the performance of the parole officer's duty"and was therefore lawful (id.). The fact that officers from other law enforcement agenciesassisted in the search does not demonstrate that the parole officers in this case were used as "a'conduit' for doing what the police could not do otherwise" (People v Mackie, 77 AD2d778, 779 [1980]). As noted, defendant's parole officer testified that he alone made the decision toinclude defendant on the list of parolees to be searched, and that he was motivated to do so bylegitimate reasons related to defendant's status as a parolee. We note that we afford deference tothe court's determination that the parole officer's testimony was credible (see generally Peoplev Prochilo, 41 NY2d 759, 761 [1977]), and that defendant was not singled out by lawenforcement officials to be searched; instead, he was one of at least 15 parolees and probationersto be searched by the joint task force.
Although defendant's parole officer was aware that Syracuse police officers had received ananonymous tip that defendant was in possession of a handgun, that tip was receivedapproximately two months before the search was conducted, and the court specifically [*3]determined that the tip "played no role" in the parole officer'sdecision to search the residence of defendant. Affording deference to the court as the factfinder,we cannot conclude that the court's determination in that regard was erroneous (see generallyid.). We thus agree with the court that this was not a police search conducted in the guise of aparole search. Present—Scudder, P.J., Fahey, Lindley and Martoche, JJ.