| People v Schaefer |
| 2018 NY Slip Op 05235 [163 AD3d 1179] |
| July 12, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Kevin P. Schaefer, Appellant. |
Cooper Erving & Savage LLP, Albany (Phillip G. Steck of counsel), for appellant.
Susan J. Mallery, District Attorney, Schoharie (Michael L. Breen of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Schoharie County (Bartlett III, J.),rendered October 11, 2017, convicting defendant upon his plea of guilty of the crime of criminalpossession of a weapon in the third degree.
In late June 2015, the State Police commenced an investigation into injuries, including atraumatic head injury, sustained by an eight-year-old child following an incident near defendant'sresidence where the child became unresponsive while in defendant's care. Two weeks later, thepolice obtained a search warrant, which authorized a search of defendant's residence, person andproperty for, among other things, any belongings and personal effects of the child, any items ofevidence that may contain bodily fluids that would identify the person(s) who caused the child'sinjuries, and blunt objects or other items that could have caused the child's injuries. The searchwarrant described the property as having two house trailers and three cottages and included anylockboxes, safes and containers found therein. Police executed the search warrant and seized,among other things, an illegal assault rifle from a locked gun safe in the second trailer. Defendantwas thereafter charged by indictment with reckless endangerment in the first degree, recklessassault of a child by a day-care provider, criminal possession of a weapon in the third degree andendangering the welfare of a child.
Defendant moved to suppress any physical evidence seized from him, including the [*2]assault rifle, contending that his Fourth Amendment rights wereviolated because the search warrant was not supported by probable cause and the searchexceeded the scope of the warrant. Following a hearing, County Court denied the motion.Defendant subsequently entered an Alford plea to criminal possession of a weapon in thethird degree. As part of the plea agreement, defendant retained his right to appeal and specificallyreserved his right to challenge the denial of his suppression motion (see CPL 710.70 [2]).In accordance with the plea agreement, County Court sentenced defendant to 60 days ofincarceration followed by five years of probation.[FN1] Defendant now appeals, and we affirm.
Defendant's sole contention is that County Court improperly denied his suppression motion.Initially, insofar as defendant challenges the validity of the search warrant by arguing that themagistrate acted as a rubber stamp in issuing the warrant, we find that this argument isunpreserved (see CPL 470.05 [2]) and, in any event, without merit. Furthermore, weagree with County Court that the challenged search warrant was supported by probable cause andthat the search did not exceed the scope of the warrant.[FN2] "A search warrant approved by a magistrate ispresumed valid and will be upheld if the warrant application demonstrates that there wassufficient information to support a reasonable belief that evidence of a crime may be found in acertain place" (People v Brooks, 152AD3d 1084, 1086 [2017] [internal quotation marks and citations omitted]; see People vBigelow, 66 NY2d 417, 423 [1985]; People v McCulloch, 226 AD2d 848, 849[1996], lv denied 88 NY2d 1070 [1996]).
The sworn written application submitted by State Police Investigator Thomas Cioffi providedthat, on June 29, 2015 while defendant was caring for the child near his residence, the childbecame unresponsive. Upon evaluation by medical professionals, it was determined that the childsustained a life-threatening subdural hematoma, among other injuries. The emergency room staffat Albany Medical Center contacted the State Police to make a mandated report of suspectedchild abuse, indicating that the victim was suffering from, among other things, internal injuries,lacerations, bruises and inadequate guardianship. During their investigation, State Policepersonnel conducted interviews of physicians at Albany Medical Center, with one physicianopining that no natural causes of subdural hematoma were detected and that the injury wascaused by trauma. Other interviews determined that the child had exclusively been under the careand control of his mother and defendant since June 8, 2015. Furthermore, the investigationdeveloped contradictory information with respect to what occurred on the day of the incident, aswell as inconsistencies as to the care and guardianship of the child. At the hearing, one of theinvestigators testified that, before the search warrant was issued, defendant voluntarily showedhim around the property and indicated that he was working on the second trailer for use byvisiting family and friends. We conclude that this information was sufficient to support areasonable conclusion that evidence of a crime may be found within any of the structures locatedon the property (see People v Bigelow, 66 NY2d at 423; People v Pasco, 134 AD3d 1257,1258 [2015]; People v Rogers, 94AD3d 1246, 1247-1248 [2012], lv denied 19 NY3d 977 [2012]; [*3]People v McCulloch, 226 AD2d at 849). We further concludethat the search of the second trailer did not exceed the scope of the search warrant, for thewarrant expressly included the second trailer and, as the record shows and defendant concedes inhis brief, he had access to and control over the second trailer.
McCarthy, J.P., Egan Jr., Clark and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:We note that County Courtgranted a 90-day stay at sentencing, but the record is otherwise unclear as to whether that staywas extended.
Footnote 2:To the extent that this issue isbefore us, we agree with County Court's implicit conclusion that defendant has standing tochallenge the search of the second trailer.