| People v Smith |
| 2012 NY Slip Op 09270 [101 AD3d 1794] |
| December 28, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Christopher Smith, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), renderedJanuary 20, 2011. The judgment convicted defendant, upon his plea of guilty, of criminal possession ofa 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 upon his plea of guilty of criminalpossession of a weapon in the second degree (Penal Law § 265.03 [3]). Defendant contendsthat the consent to search his apartment obtained from the complainant involved in an alleged domesticdispute with defendant was invalid and thus that Supreme Court erred in refusing to suppress evidenceobtained by the police during the resulting search. We reject that contention. The People met theirburden of establishing that the police reasonably believed that the complainant had the requisiteauthority to consent to the search of defendant's apartment (see People v Gonzalez, 88 NY2d289, 295 [1996]; People v Adams, 53 NY2d 1, 9-10 [1981], rearg denied 54 NY2d832 [1981], cert denied 454 US 854 [1981]). The evidence at the suppression hearingestablished that police officers responding to a report of a domestic dispute at defendant's apartmentwere met by the complainant, who stated that she was defendant's girlfriend, that she lived in theapartment, and that she wanted to retrieve certain items of personal property but was afraid thatdefendant would return to the apartment. The complainant further stated that defendant kept a gun inthe apartment and had threatened to shoot her. The complainant permitted the police officers to enterthe apartment, directed an officer to the location of the gun, and collected some belongings from acloset that contained both men's and women's clothing. Thus, "the record establishes that the searchingofficer[s] relied in good faith on the apparent authority of [the complainant] to consent to the search,and the circumstances reasonably indicated that [she] had the requisite authority to consent to thesearch" (People v Fontaine, 27 AD3d1144, 1145 [2006], lv denied 6 NY3d 847 [2006]; see People v Frankline, 87 AD3d 831, 833 [2011], lv denied19 NY3d 973 [2012]; People vLittleton, 62 AD3d 1267, 1269 [2009], lv denied 12 NY3d 926 [2009]). Contraryto defendant's contention, the searching officers were "not required to make 'some inquiry into theactual state of authority' " of complainant to consent to a search because they were not " 'faced with asituation which would cause a reasonable person to question the consenting part[y's] power or controlover the premises or property to be inspected' " (Fontaine, 27 AD3d at 1145, [*2]quoting Adams, 53 NY2d at 10). Finally, the sentence is notunduly harsh or severe. Present—Smith, J.P., Peradotto, Lindley, Sconiers and Valentino, JJ.