| People v Taylor |
| 2012 NY Slip Op 05463 [97 AD3d 1139] |
| July 6, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v GabrielTaylor, Appellant. |
—[*1] Gabriel Taylor, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Ashley Rae Small of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.),rendered May 23, 2008. The judgment convicted defendant, upon a jury verdict, of robbery in thefirst degree (two counts), attempted murder in the first degree (three counts), assault in the firstdegree and criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of,inter alia, two counts of robbery in the first degree (Penal Law § 160.15 [1], [2]) and threecounts of attempted murder in the first degree (§§ 110.00, 125.27 [1] [a] [vii]; [b]).We reject defendant's contention that Supreme Court erred in refusing to suppress tangibleevidence seized from his residence and any statements that he allegedly made during the searchof that residence as the fruit of an unlawful search. In seeking suppression, defendant contendedthat police officers "illegally and improperly bypassed the requirement of obtaining a valid searchwarrant by masking the visit of the defendant's residence and search of his room as a parolevisit." We conclude, however, that the search was "rationally and reasonably related to theperformance of [the parole officer's] duty as a parole officer" (People v Huntley, 43NY2d 175, 179 [1977]; see People vNappi, 83 AD3d 1592, 1593-1594 [2011], lv denied 17 NY3d 820 [2011];People v Van Buren, 198 AD2d 533, 534 [1993], lv denied 83 NY2d 811 [1994]).
While investigating the robbery, police officers began to suspect that defendant, a parolee,was involved. At approximately 11:00 p.m. on the night of the robbery, the police officerscontacted the parole officer whose duty it was to locate parolees, in order to obtain defendant'smost recent address. The police officers did not inform the parole officer of their reason forneeding that information. After obtaining the requested information for the police officers, theparole officer informed the police officers that he was going to go to the residence "to verify if[defendant] was home" because defendant had a curfew of 10:00 p.m. Inasmuch as it was thepolicy of the Division of Parole to have at least two officers present for any home visit made after10:00 p.m., the parole officer asked the police officers if they would accompany him. We thusconclude that the parole officer was "pursuing parole-related objectives" in going to [*2]defendant's residence (People v Peterson, 6 AD3d 363, 364 [2004], lv denied 3NY3d 710 [2004]; see People vVann, 92 AD3d 702, 702-703 [2012], lv denied 19 NY3d 868 [2012];People v Felder, 272 AD2d 884 [2000], lv denied 95 NY2d 905 [2000];People v Smith, 234 AD2d 1002 [1996], lv denied 89 NY2d 988 [1997]; cf.People v Mackie, 77 AD2d 778, 779 [1980]).
When the parole officer and police officers arrived at defendant's residence, they wereinformed by a woman who identified herself as defendant's aunt that defendant was not home. Atthat point it was apparent that defendant was in violation of his parole, and "the parole officer'sconduct in searching the [residence] for a possible explanation of [defendant's] otherwiseunexplained failure to [be present] was permissible" (Huntley, 43 NY2d at 182). Whilethe parole officer and police officers were present at the residence, a person who identifiedhimself as defendant telephoned the residence and was overheard making certain statements.Inasmuch as the search of the residence was lawful, there is no basis to suppress thosestatements.
We agree with defendant, however, that the court erred in admitting in evidence aninoperable handgun that was found during that search. It is undisputed that the gun, which wasseized from the living room couch upon which defendant slept, was not the same gun that wasused in the robbery. Although we concluded herein that the tangible evidence seized fromdefendant's residence, which evidence included the gun, was not subject to suppression as thefruit of an unlawful search, we nevertheless conclude that the gun was not admissible under anyMolineux exception. While the People contend that the gun was admissible to explain thestatements made by defendant on the phone to his aunt, we reject that contention and concludethat the gun could not "logically be linked to [any] specific material issue in the case" (Peoplev Hudy, 73 NY2d 40, 54 [1988]). We thus conclude that the probative force of that evidencedid not outweigh its potential for prejudice (see People v Pittman, 49 AD3d 1166, 1167 [2008]; People v Carter, 31 AD3d 1167,1168 [2006]; see generally People v Ventimiglia, 52 NY2d 350, 359-360 [1981]). Weconclude, however, that the error is harmless. The evidence of defendant's guilt is overwhelming,and "there [is] no significant probability that the jury would have acquitted [defendant] had theproscribed evidence not been introduced" (People v Kello, 96 NY2d 740, 744 [2001]; see People v Arafet, 13 NY3d 460,466-467 [2009]; see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).Defendant was positively identified by an eyewitness to the incident. Defendant and theeyewitness were acquaintances, and the eyewitness had conversed with defendant outside theconvenience store just minutes before the robbery. Although the eyewitness was an "[e]x crackhead" who had a criminal history, his version of events was corroborated by the surveillancevideo from the convenience store where the robbery occurred, and by three employees of thestore and a security guard from a neighboring business. In addition, defendant made numerousincriminating statements when he was ultimately arrested, one of which included details aboutthe crime that only the perpetrator or an eyewitness to the crime could have known. We furtherconclude that, based on the nature of the crimes and defendant's criminal history, the sentence isnot unduly harsh or severe.
Defendant further contends in his pro se supplemental brief that the court erred in denyinghis CPL 330.30 motion to set aside the verdict. We reject that contention. Defendant based hismotion in part on the fact that the court improperly permitted the jury to view a CPL 710.30document that had not been admitted in evidence. After learning of the error, the court alerteddefense counsel to the issue, noting that "no harm" had resulted from the error because thecontents of the document were duplicative of testimony offered during the course of the trial.Defense counsel raised no objection to the manner in which the court handled the error, and thusthe court had no authority to grant the motion to set aside the verdict based on a contention raisedfor the first time in the motion (see CPL 330.30 [1]; People v Benton, 78 AD3d 1545, 1546 [2010], lv denied 16NY3d 828 [2011]; see generally People v Carter, 63 NY2d 530, 536 [1984]). Finally, wereject [*3]defendant's contention that the court should havegranted his CPL 330.30 motion insofar as it alleged that defense counsel was ineffective forfailing to seek a mistrial based on the error relating to the CPL 710.30 document. "It is wellsettled that defense counsel cannot be deemed ineffective for failing to 'make a motion orargument that has little or no chance of success' " (People v Noguel, 93 AD3d 1319, 1320 [2012], quoting People v Stultz, 2 NY3d 277, 287[2004], rearg denied 3 NY3d 702 [2004]). We agree with the court that the jury'sinadvertent viewing of the CPL 710.30 document was harmless inasmuch as it was duplicative oftestimony admitted at trial and that, in any event, defendant failed to demonstrate the absence ofstrategic reasons for defense counsel's failure to move for a mistrial (see People v Denis, 91 AD3d1301, 1302 [2012]). Present—Scudder, P.J., Centra, Fahey, Peradotto and Sconiers,JJ.