| People v Adams |
| 2015 NY Slip Op 02355 [126 AD3d 1405] |
| March 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vElijah W. Adams, Appellant. (Appeal No. 1.) |
Timothy P. Donaher, Public Defender, Rochester (James Eckert of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.),rendered February 24, 2011. The judgment convicted defendant, upon his plea of guilty,of criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from three judgments rendered by County Courton the same day. In appeal Nos. 1 and 2, defendant appeals from judgments convictinghim upon his pleas of guilty of, respectively, criminal possession of a weapon in thesecond degree (Penal Law § 265.03 [3]) and criminal possession of acontrolled substance in the third degree (§ 220.16 [1]). In appeal No. 3,defendant appeals from a judgment entered upon his admission that he violated the termsand conditions of his probation, revoking his probation, and sentencing him toconcurrent terms of incarceration of 2
We reject defendant's contention in appeal Nos. 1 and 2 that the search by theprobation officers of his home and a safe located therein was unlawful. Althoughprobationers and parolees have a constitutional right to be free from unreasonablesearches and seizures (see People v Hale, 93 NY2d 454, 459 [1999]; People v Johnson, 94 AD3d1529, 1531 [2012], lv denied 19 NY3d 974 [2012]), " 'what may beunreasonable with respect to an individual who is not on parole [or probation] may bereasonable with respect to one who is' " (Johnson, 94 AD3d at 1531,quoting People v Huntley, 43 NY2d 175, 181 [1977]). The conditions ofdefendant's probation regarding drug and alcohol use and prohibiting his ownership offirearms were a proper basis for the probation officers' search of his home and propertytherein (see Hale, 93 NY2d at 462; People v Wheeler, 99 AD3d 1168, 1170 [2012], lvdenied 20 NY3d 989 [2012]). The search was carried out as part of the probationofficers' duties as probation officers, and "the assistance of police officers at the scenedid not render the search a police operation" (People v Johnson, 54 AD3d 969, 970 [2008]; seeJohnson, 94 AD3d at 1532; People v Scott, 93 AD3d 1193, 1194 [2012], lvdenied 19 NY3d 967 [2012], reconsideration denied 19 NY3d 1001[2012]).
Defendant contends that we must reverse the judgment in appeal No. 3 in the eventthat we reverse the judgments in appeal Nos. 1 and 2 (see generally People vPichardo, 1 NY3d 126, 129 [2003]). We reject defendant's contention, inasmuchas we are affirming the judgments in appeal Nos. 1 and 2. We conclude, however, thatthe sentence in appeal No. 3 must be vacated. Assault in the second degree is a class Dviolent felony for which an indeterminate sentence is not authorized (see PenalLaw § 70.02 [1] [c]; [2] [b]; People v Delorenzo, 34 AD3d 868, 869 [2006]; see generally People v Endresz,1 AD3d 888, 888-889 [2003]). In addition, the indeterminate term of2