| People v Nance |
| 2015 NY Slip Op 07393 [132 AD3d 1389] |
| October 9, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDarryl Nance, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Julie Bender Fiske of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered March 21, 2014. The judgment convicted defendant, upon his plea ofguilty, 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 a judgment convicting him upon his plea ofguilty of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]). We reject defendant's contention that Supreme Court erred inrefusing to suppress the handgun seized by the police from defendant's apartment on theground that his girlfriend's consent to search was not voluntarily given. " 'It iswell established that the police need not procure a warrant in order to conduct a lawfulsearch when they have obtained the voluntary consent of a party possessing the requisiteauthority or control over the premises or property to be inspected' " (People v Plumley, 111 AD3d1418, 1419 [2013], lv denied 22 NY3d 1140 [2014]). "Here, the totality ofthe circumstances establishes that [defendant's girlfriend] 'not only consented to thesearch, but also cooperated with the [search by drawing the officers' attention to thelocation where the gun was recovered] to accomplish the search. Such conduct signifiedthe voluntary consent and willingness [of defendant's girlfriend] to cooperate with thepolice officers in their search' " (People v McCray, 96 AD3d 1480, 1481 [2012], lvdenied 19 NY3d 1104 [2012]; see People v Santiago, 41 AD3d 1172, 1173-1174 [2007],lv denied 9 NY3d 964 [2007]). Contrary to defendant's contention, his girlfrienddid not indicate that she was under duress or compelled by law enforcement to consent tothe search.
Also contrary to defendant's contention, he was not improperly detained in order toprevent him from objecting to the search. The officer's prior knowledge of defendant'sdangerous propensities provided him with a reasonable basis for detaining defendant, toensure officer safety (see Peoplev Binion, 100 AD3d 1514, 1516 [2012], lv denied 21 NY3d 911[2013]). Defendant failed to preserve for our review his contention that the police lackedprobable cause to arrest him (seePeople v Williams, 118 AD3d 1429, 1429-1430 [2014], lv denied 24NY3d 1222 [2015]), and we decline to exercise our power to review that contention as amatter of discretion in the interest of justice (see CPL 470.15 [3] [c]).
Finally, we reject defendant's contention that the court erred in refusing to suppressthe showup identification as unduly suggestive. "The showup procedure was reasonableunder the circumstances because it was conducted in 'geographic and temporal proximityto the crime,' " and it was not rendered unduly suggestive by the fact thatdefendant was in handcuffs and in the presence of a police officer during the procedure(People v Santiago, 83AD3d 1471, 1471 [2011], lv denied 17 NY3d 800 [2011]).Present—Scudder, P.J., Smith, Carni, Lindley and DeJoseph, JJ.