| People v Davis |
| 2012 NY Slip Op 09259 [101 AD3d 1778] |
| December 28, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Dashawn Davis,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Rene Juarez of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), renderedAugust 5, 2010. The judgment convicted defendant, after a nonjury trial, of criminal possession of acontrolled substance in the third degree (two counts), criminal possession of a controlled substance inthe fourth degree, criminal possession of a controlled substance in the seventh degree, criminalpossession of a weapon in the second degree, criminally using drug paraphernalia in the second degree,criminal possession of marihuana in the fourth degree, unlawful possession of marihuana, and unlawfullytinted windows.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of, interalia, criminal possession of a controlled substance (CPCS) in the third degree (Penal Law §220.16 [12]), CPCS in the fourth degree (§ 220.09 [1]), CPCS in the seventh degree (§220.03), criminal possession of a weapon in the second degree (§ 265.03 [3]), criminally usingdrug paraphernalia in the second degree (§ 220.50 [3]), criminal possession of marihuana in thefourth degree (§ 221.15), and unlawful possession of marihuana (§ 221.05). We rejectdefendant's contention that Supreme Court erred in refusing to suppress evidence that was seized fromhis apartment by parole officers and provided to police officers. It is well settled that a "parole officermay conduct a warrantless search where 'the conduct of the parole officer was rationally andreasonably related to the performance of the parole officer's duty' " (People v Nappi, 83 AD3d 1592, 1593[2011], lv denied 17 NY3d 820 [2011], quoting People v Huntley, 43 NY2d 175,181 [1977]; see People v Scott, 93AD3d 1193, 1194 [2012], lv denied 19 NY3d 967 [2012], reconsideration denied19 NY3d 1001 [2012]). On the date of defendant's arrest, he was a parolee. Defendant wasarrested for possessing cocaine and marihuana that the police found on his person during a lawful trafficstop and pat down. The police officers contacted the Division of Parole to inform it of defendant'sparole violation. Parole officers decided to search defendant's apartment, and they requested the helpof police officers and a canine unit. Based on the evidence presented at the suppression hearing, wecannot conclude that the court "erred, as a matter of law, in concluding that the search of thedefendant's apartment by [the] parole officer[s], with police assistance, . . . 'was infurtherance of parole purposes and related to [their] duty . . . as parole officer[s]' "(People v Johnson, 63 NY2d 888, 890 [1984], rearg denied 64 NY2d 647 [1984];see Scott, 93 AD3d at 1194; Peoplev [*2]Lynch, 60 AD3d 1479, 1480 [2009], lv denied12 NY3d 926 [2009]).
Defendant also challenges the sufficiency and weight of the evidence supporting the convictions ofcriminal possession of a weapon and controlled substances, contending that the People failed to showconstructive possession of the weapon and drugs by demonstrating that he "had dominion and controlover the area where the contraband was found" (People v Shoga, 89 AD3d 1225, 1227 [2011], lv denied 18NY3d 886 [2012]; see Penal Law § 10.00 [8]). At trial, the People established thatdefendant was living in the apartment, he told his parole officer that he was living in that apartment, hehad keys to the apartment and to a safe in the apartment in which contraband was found, his name wason the apartment's mailbox, pieces of mail addressed to him were found in the apartment, and items ofmale clothing were found in the apartment. Viewed in the light most favorable to the People, theevidence is legally sufficient to establish that he had dominion and control over the area where thecontraband was found (see People v Bleakley, 69 NY2d 490, 495 [1987]) and, viewing theevidence in light of the elements of the possessory crimes in this nonjury trial (see People v Danielson, 9 NY3d 342,349 [2007]), including criminally using drug paraphernalia in the second degree, we conclude that theverdict is not against the weight of the evidence (see id. at 348-349; People v Lane, 7 NY3d 888, 890[2006]; Bleakley, 69 NY2d at 495). We further conclude that the sentence is not unduly harshor severe. Present—Scudder, P.J., Smith, Fahey, Carni and Martoche, JJ.