| People v McMillan |
| 2015 NY Slip Op 05702 [130 AD3d 651] |
| July 1, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Everett B. McMillan, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), for appellant,and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Sharon Y. Brodt, John F. McGoldrick, and Jeanette Lifschitz of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Hollie, J.), rendered December 16, 2010, convicting him of criminal possession of aweapon in the second degree, criminal possession of a weapon in the third degree, andunlawful possession of marijuana, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing (Aloise, J.), of that branch of thedefendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The defendant was arrested in July 2009, pursuant to a parole warrant, by a NewYork City Police Department detective who was assigned to the Joint ApprehensionWarrant Squad of the Queens Warrant Squad. At a suppression hearing, the detectivetestified that, as a member of the Queens Warrant Squad, his job is to investigate andapprehend parole absconders. He testified that, once a parole warrant is issued, he teamsup with the parole officer in charge of such warrant cases to apprehend the paroleviolator.
The detective testified that he had been searching for the defendant, for whom aparole warrant had been issued based upon approximately 14 different parole violations.To that end, the detective went to an address in Queens, spoke with a girlfriend orex-girlfriend of the defendant, and gave her his phone number. The detective furthertestified that, on the day of the arrest, he was working as a warrant officer and that he hadthe parole warrant for the defendant and a "certificate of release to parole supervision"which had been signed by the defendant. The certificate of release to parole supervisionset forth the conditions of the defendant's parole, which included the defendant's consentto the search and inspection of his person, residence, and property.
On the day of the arrest, the detective received a phone call from the defendant'sgirlfriend or ex-girlfriend, and he and his partner went to her address in Queens, wherethey believed they would find the defendant in his car. They had confirmed that a car, a1995 Park Avenue, was [*2]registered to the defendant.When they arrived, they were unable to locate the defendant. Thereafter, as they weretraveling to another location, the detective's partner received another phone call from thesame caller, informing them that the defendant had returned to the address in Queens.According to the detective, who overheard the phone call, the caller, in a frantic tone,reported that the defendant was in the car with her son, and that her son had informed herby text message that there was a gun in the car.
The detectives returned to the address and saw the 1995 Park Avenue registered tothe defendant. Although the car was unoccupied, its hood was warm to the touch. Thedetectives then entered an apartment at that address and arrested the defendant.According to the detective, thereafter, at the behest of the landlord of the premises, hemoved the defendant's car, which was blocking the driveway. For safety reasons, thedetective looked in the back seat area of the car before he began to move it. He saw anopen backpack with the butt of a gun sticking out of a plastic bag. The detective removedthe gun, which was with a box of ammunition, from the backpack.
Later, at a police precinct station house, the detective searched the defendant and, inthe defendant's hair, found two plastic bags containing marijuana.
The defendant was indicted on one count of criminal possession of a weapon in thesecond degree (Penal Law § 265.03 [3]), one count of criminal possessionof a weapon in the third degree (Penal Law § 265.02 [1]), and one count ofunlawful possession of marijuana (Penal Law § 221.05). The hearing courtdenied that branch of the defendant's omnibus motion which was to suppress physicalevidence. Following a trial, the jury found the defendant guilty of all three charges. Thedefendant appeals from the judgment of conviction.
While a person on parole is not denied the Fourth Amendment right to be free fromunreasonable searches and seizures, the status of a parolee is always relevant and may becritical in evaluating the reasonableness of a particular search or seizure. A search whichwould be unlawful if directed against an ordinary citizen may be proper if conductedagainst a parolee (see People v Huntley, 43 NY2d 175 [1977]). The specialcircumstances and close supervision that come with being a parolee must be consideredwhen determining if a search is reasonable (see People v Fridell, 81 AD2d 869[1981]).
Under the circumstances of this case, the detective's search of the car was "rationallyand reasonably related to the performance of the parole officer's duty" by dint of thedetective's parole responsibilities as a member of the Joint Apprehension Warrant Squad(People v Huntley, 43 NY2d at 181; see People v Van Buren, 198 AD2d533, 534 [1993]). Here, no relevant distinction exists between the detective and thedefendant's parole officer (see People v Van Buren, 198 AD2d at 534). At thetime of the search, the detective was aware that the defendant had violated the terms ofhis parole, that as a result a warrant had been issued for the defendant's arrest (seePeople v Huntley, 43 NY2d at 182), and that the defendant had consented in writingto a search of his person and property. Additionally, the detective was aware that the carwas registered to the defendant, the defendant had acknowledged that the car was his,and a known source had said that she had been told that the defendant had just been inthe car with a gun (see People v Hale, 93 NY2d 454, 459-462 [1999]; People v Johnson, 94 AD3d1529, 1531-1532 [2012]). Under these circumstances, the detective's search wasjustified (see People v Huntley, 43 NY2d 175 [1977]; People v Johnson,94 AD3d at 1531-1532; People v Van Buren, 198 AD2d at 534). Accordingly,the Supreme Court properly denied that branch of the defendant's omnibus motion whichwas to suppress physical evidence.
The trial court properly granted the prosecution's reverse-Batson challenge tojuror number four (see Batson v Kentucky, 476 US 79 [1986]; People vKern, 75 NY2d 638 [1990]). The record supports the court's express and impliedfindings (see People v Payne, 88 NY2d 172 [1996]) that the race-neutral reasonprovided by the defendant for the peremptory challenge at issue was pretextual. Whenasked by the court whether he had a race-neutral reason, defense counsel explained that"there was no information that was brought out about [the juror] other than the fact shehas a police officer that's a cousin," and "[t]here is nothing specific"; he reiterated that"[t]here is nothing specific. I don't know anything about her." This explanationessentially amounted to no reason at all (see People v [*3]Erskine, 90AD3d 674, 675 [2011]).
In any event, even if this Court were to find that the defendant's statement that he didnot have enough information about juror number four was a facially race-neutralexplanation (see People v Payne, 88 NY2d at 183-184), the record developed inthe trial court provided a sufficient basis to conclude that this explanation was pretextual(see People v Erskine, 90 AD3d at 675; People v Stewart, 238 AD2d 361,362 [1997]).
The defendant's contention that he was deprived of his right to confront a witness bythe elicitation of certain testimony from a certain detective is unpreserved for appellatereview (see CPL 470.05 [2]; People v Mohabir, 111 AD3d 851 [2013]) and, in anyevent, without merit. The challenged testimony concerned the telephone call the detectivereceived from the female caller on the date of the defendant's arrest, directing thedetective and his partner to return to the Queens address because the defendant was atthat location with a gun. The female caller's statements to the detective werenontestimonial, since their primary purpose was to obtain an emergency response (see People v Dockery, 107AD3d 913, 914 [2013]; People v Legere, 81 AD3d 746, 750 [2011]). Accordingly,the admission of the detective's testimony describing those statements did not violate thedefendant's right to confront a witness (see People v Dockery, 107 AD3d at 914;People v Legere, 81 AD3d at 750).
The defendant also contends that certain allegedly improper comments made by theprosecutor during summation deprived him of a fair trial. The defendant's contentions areunpreserved for appellate review (see CPL 470.05 [2]) because he failed to objectto the comments he now challenges (see People v Romero, 7 NY3d 911, 912 [2006]; People v Damon, 78 AD3d860 [2010]), or failed to request additional relief when the trial court sustainedobjections or provided curative instructions (see People v Heide, 84 NY2d 943,944 [1994]; People v Damon, 78 AD3d at 860; People v Hollenquest, 48AD3d 592, 593 [2008]). In any event, reversal is not warranted since theprosecutor's remarks did not, singly or in combination, deprive the defendant of a fairtrial (see People vGarcia-Villegas, 78 AD3d 727, 728 [2010]; People v Dunbar, 74 AD3d 1227, 1229 [2010]; People v Hendrix, 60 AD3d1081, 1082-1083 [2009]; People v Almonte, 23 AD3d 392, 394 [2005]). To theextent that defense counsel did not object to comments made by the prosecutor onsummation or to curative instructions issued by the court as to certain other comments,such inaction did not deprive the defendant of the effective assistance of counsel (see People v Taylor, 1 NY3d174 [2003]; People vCass, 79 AD3d 768 [2010]; People v Lopez, 69 AD3d 958 [2010]). Moreover, therecord reveals that defense counsel otherwise provided meaningful representation(see People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54NY2d 137, 147 [1981]).
The defendant's challenge to the legal sufficiency of the evidence supporting hisconviction of unlawful possession of marijuana is unpreserved for appellate review(see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484 [2008]). In any event,viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of all counts beyond a reasonable doubt. Moreover, upon the exercise ofour factual review power (see CPL 470.15 [5]), we are satisfied that the verdictof guilt of all counts was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's remaining contentions are without merit. Rivera, J.P., Miller,Maltese and Duffy, JJ., concur.