| People v Plumley |
| 2013 NY Slip Op 07624 [111 AD3d 1418] |
| November 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vMichael Plumley, Appellant. |
—[*1] Michael Plumley, defendant-appellant pro se. David W. Foley, District Attorney, Mayville (Laurie M. Beckerink of counsel), forrespondent.
Appeal from a judgment of the Chautauqua County Court (John T. Ward, J.),rendered December 19, 2011. The judgment convicted defendant, upon his plea of guilty,of robbery in the first 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 ofguilty of robbery in the first degree (Penal Law § 160.15 [1]). We rejectdefendant's contention that County Court erred in refusing to suppress physical evidenceseized by the police from the bedroom and an adjoining room in an apartment in whichdefendant had stayed. "It is well established that the police need not procure a warrant inorder to conduct a lawful search when they have obtained the voluntary consent of aparty possessing the requisite authority or control over the premises or property to beinspected" (People v Adams, 53 NY2d 1, 8 [1981], rearg denied 54NY2d 832 [1981], cert denied 454 US 854 [1981]; see People v Cosme,48 NY2d 286, 290 [1979]). Thus, " 'where two or more individuals share a common rightof access to or control of the property to be searched, any one of them has the authority toconsent to a warrantless search in the absence of the others' " (People v Rivera, 83 AD3d1370, 1372 [2011], lv denied 17 NY3d 904 [2011], quoting Cosme,48 NY2d at 290).
Here, the People met their burden of establishing that the police reasonably believedthat the lessee of the subject apartment had the authority to consent to the search of theapartment, including the areas of the apartment from which the physical evidence wasseized (see People v Smith,101 AD3d 1794, 1794 [2012], lv denied 20 NY3d 1104 [2013]; see alsoAdams, 53 NY2d at 9-10; see generally People v Berrios, 28 NY2d 361, 367[1971]). Indeed, the police searched the apartment pursuant to a waiver that wasvoluntarily signed by the lessee of that premises, and the bedroom and an adjoining roomfrom which the physical evidence was seized were areas that were accessible to everyonein the apartment. Specifically, the evidence establishes that there was no door to thebedroom, and that the adjacent room at issue was connected to the bedroom by "an opendoorway."[*2]
Defendant appears to contend that we should alsoconsider whether the police had consent to search the bags found within the rooms atissue. Although defendant relies on case law containing the well-settled principle thatgeneral consent granted by someone other than a defendant to search a premises does notvalidate the search of something used exclusively by the defendant for personal effects,i.e., a drawer, bag or similar item (see People v Holmes, 89 AD3d 1491, 1492 [2011]; seealso People v Gonzalez, 88 NY2d 289, 294-295 [1996]), that reliance is misplacedinasmuch as there is no evidence that the police seized anything from the apartment thatwas stored inside of a bag. Although the police officer who testified on behalf of thePeople at the suppression hearing acknowledged that there were bags in the area that wassearched, he provided no indication that such bags were opened or that evidence wastaken from those bags. We thus conclude that the People met "the burden of goingforward to show the legality of the police conduct in the first instance" (Berrios,28 NY2d at 367 [internal quotation marks and emphasis omitted]), and that defendantotherwise failed to meet his "ultimate burden of proving that the [seized] evidence shouldnot be used against him" (id.).
We also reject defendant's contention that the court erred in refusing to suppressevidence of the victim's identification of him. Contrary to defendant's contention, "thesubjects depicted in the photo array are sufficiently similar in appearance so that theviewer's attention is not drawn to any one photograph in such a way as to indicate thatthe police were urging a particular selection" (People v Quinones, 5 AD3d 1093, 1093 [2004], lvdenied 3 NY3d 646 [2004]; see People v Page, 105 AD3d 1380, 1382 [2013]). The factthat defendant is the only person in the photo array wearing a red shirt is of no momentinasmuch as defendant was not the only person shown wearing a dark-colored shirt,defendant was not shown in a shirt similar to the white thermal shirt that he was wearingfor a prior showup identification, and shirt color was not a part of the description of theassailant that the victim provided to the police (see People v Bell, 19 AD3d 1074, 1075 [2005], lvdenied 5 NY3d 803 [2005], lv denied on reconsideration 5 NY3d 850[2005]; People v Porter, 2AD3d 1429, 1430 [2003], lv denied 2 NY3d 744 [2004]). Contrary todefendant's further contention, the fact that the severely injured victim identifieddefendant in a photo array approximately five days after the victim failed to identifydefendant in a showup procedure that was conducted at the hospital where the victim wasundergoing treatment is of no consequence here. " '[M]ultiple pretrial identificationprocedures are not inherently suggestive' " (People v Morgan, 96 AD3d 1418, 1419 [2012], lvdenied 20 NY3d 987 [2012]; see People v Peterkin, 81 AD3d 1358, 1359 [2011], lvdenied 17 NY3d 799 [2011]) and, in this case, the police officer who testified onbehalf of the People indicated that the victim did not remember anything about theshowup procedure at the time the victim identified defendant in the photo array (cf. People v Thompson, 17AD3d 138, 139 [2005], lv denied 5 NY3d 795 [2005]; see generallyPeople v Young, 261 AD2d 109, 110 [1999], lv denied 93 NY2d 1007[1999]). Even assuming, arguendo, that the victim remembered the showup identificationprocedure, we note that the shirt defendant wore during that procedure was a differentcolor than the shirt defendant wore in the picture used in the photo array (cf.generally People v Munoz, 223 AD2d 370, 370 [1996], lv denied 88 NY2d990 [1996]), and there is nothing in the record establishing that the photo array wastainted by the showup procedure (cf. People v Anderson, 94 AD3d 1010, 1011 [2012], lvdenied 19 NY3d 956 [2012], reconsideration denied 19 NY3d 1101 [2012]).We have reviewed defendant's remaining contention and conclude that it is withoutmerit. Present—Smith, J.P., Centra, Fahey, Carni and Whalen, JJ.