| People v Everett |
| 2012 NY Slip Op 04429 [96 AD3d 1105] |
| June 7, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JefferyEverett, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered March 23, 2011, upon a verdict convicting defendant of the crime of criminalpossession of a controlled substance in the fourth degree.
In January 2010, while defendant was on parole, his parole officer conducted a home visit,accompanied by another parole officer and three police department detectives. When defendantopened the door, the officers saw smoke and smelled a strong odor of marihuana inside. Afterdenying that he had smoked marihuana, defendant eventually admitted that he had done so anddirected officers to a garbage can containing the remnants of a marihuana cigar. His paroleofficer spoke with a supervisor and determined that defendant could not spend the night in thathouse. While procuring clothing for defendant to leave the house, a detective found cocaine in aclear plastic bag inside a sneaker. Defendant first denied, then admitted, ownership of thesneakers and drugs. At the police station, after being advised of his Miranda rights for thefirst time, he admitted ownership of the sneakers and cocaine and signed a written statement tothat effect.
Defendant was charged with criminal possession of a controlled substance in the third degreeand criminal possession of a controlled substance in the fourth degree. To resolve defendant'ssuppression motion, County Court held a Mapp/Huntley hearing. The court allowed[*2]admission of the cocaine into evidence but suppressed mostof defendant's statements. At trial, the jury acquitted defendant of criminal possession of acontrolled substance in the third degree and convicted him of criminal possession of a controlledsubstance in the fourth degree. The court sentenced him, as a second felony offender, to 7½years in prison and three years of postrelease supervision. Defendant appeals.
County Court did not err in denying defendant's motion to suppress the cocaine. Defendant'sparole officer was performing his official duties and had the authority to conduct a home visitand, upon smelling marihuana and obtaining defendant's admission that he smoked marihuanathere, to conduct a more extensive search and remove him from the home (see People v Walker, 80 AD3d793, 794 [2011]). The legality of the officers' search of the home to locate moremarihuana—which was unsuccessful—is irrelevant because the cocaine was notdiscovered during that search. The parole officer testified that his supervisor directed him toremove defendant from the premises as defendant could not stay in that environment. A detectivetestified that defendant's parole officer directed the detective to procure clothing for defendant,who was wearing only a T-shirt and boxer shorts. The detective testified that he went upstairswith defendant's mother, who pointed out a closet that she said contained defendant's clothes.While another officer removed a pair of pants, the detective removed a pair of sneakers from thecloset. Those sneakers contained the cocaine. Deferring to the court's credibility determinationaccepting the detective's testimony in this regard, we find that the court properly denieddefendant's motion to suppress the cocaine (see People v Shaver, 86 AD3d 800, 800-801 [2011], lvdenied 18 NY3d 962 [2012]).
Contrary to defendant's assertion, following the suppression hearing County Court did, infact, grant his motion to suppress most of his statements. The court permitted the People tointroduce those suppressed statements at trial, however, after defense counsel stated during hisopening remarks that there was no proof to connect defendant with the cocaine or the sneakers.The court did not abuse its discretion when it held that these comments created a misleadingimpression, thereby opening the door to the admission of defendant's statements (see People vRojas, 97 NY2d 32, 38-39 [2001]; compare People v Rosario, 17 NY3d 501, 514 [2011]).
Peters, P.J., Mercure, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.