| People v Sherman |
| 2019 NY Slip Op 08225 [177 AD3d 777] |
| November 13, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Scott Sherman, Appellant. |
Mark E. Goidell, Garden City, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Daniel Bresnahan and BarbaraKornblau of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (JohnL. Kase, J., at plea; Christopher G. Quinn, J., at sentence), rendered May 29, 2014,convicting him of unlawful imprisonment in the first degree, upon his plea of guilty, andimposing sentence. The appeal brings up for review the denial, after a hearing pursuantto a stipulation in lieu of motions (John L. Kase, J.), of the suppression of physicalevidence.
Ordered that the judgment is affirmed.
The defendant was charged with kidnapping in the second degree and unlawfulimprisonment in the first degree, among other crimes, arising out of an incident in whichhe allegedly committed various violent acts against his wife inside the residence theyshared. After a hearing pursuant to a stipulation in lieu of motions, the County Courtdenied suppression of certain physical evidence recovered from the residence during awarrantless search by the police. Thereafter, the defendant pleaded guilty to unlawfulimprisonment in the first degree. On appeal, the defendant argues, inter alia, that thecourt erred in denying suppression of physical evidence, and that his plea of guilty wasnot knowing, voluntary, and intelligent.
We agree with the County Court's determination to deny suppression of the physicalevidence recovered by the police during the warrantless search of his house. "[T]hepolice may lawfully conduct a warrantless search when they have obtained the voluntaryconsent of a party who possesses the requisite degree of authority and control over thepremises or personal property in question" (People v Cosme, 48 NY2d 286, 290[1979]; see People vXochimitl, 147 AD3d 793, 794 [2017], affd 32 NY3d 1026 [2018]; People v Watson, 101 AD3d913, 914 [2012]). Here, the People met their burden of establishing that consent tothe warrantless search was freely and voluntarily given by the defendant's wife, a personwho possessed the requisite degree of authority and control over the premises, at a timewhen the defendant was no longer present at the premises (see People v Clark, 167 AD3d1035, 1036 [2018]; cf.People v Grillo, 128 AD3d 1103, 1105 [2015]). Furthermore, there was noevidence that the police removed the defendant for the purpose of avoiding his potentialobjection to the search (see People v Watson, 101 AD3d at 914; United Statesv Lopez, 547 F3d 397, 400 [2d Cir 2008]).
The defendant's contention that his plea of guilty was not knowingly, voluntarily, andintelligently entered is unpreserved for appellate review, since he did not move towithdraw the plea (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Harden, 175 AD3d613, 614 [2019]; People vNarbonne, 131 AD3d 626, 627 [2015]). Moreover, the exception to thepreservation requirement does not apply here, since the plea allocution did not castsignificant doubt upon the defendant's guilt, negate an essential element of the crime, orcall into question the voluntariness of his plea (see People v Lopez, 71 NY2d at666; People v Peralta, 171AD3d 948 [2019]). In any event, the defendant's contention is without merit. TheCounty Court adequately advised the defendant of the constitutional rights he wasforfeiting by pleading guilty (see Boykin v Alabama, 395 US 238, 243 [1969]),and the record affirmatively demonstrates the defendant's understanding and waiver ofthese rights, and the entry of a knowing, voluntary, and intelligent plea of guilty (seePeople v Harris, 61 NY2d 9, 19-20 [1983]; People v Vasquez, 168 AD3d 1185, 1186 [2019]; People v Dancy, 156 AD3d717 [2017]).
Contrary to the defendant's contention, he was not deprived of the effectiveassistance of counsel. Viewing the record in its entirety, the defendant receivedmeaningful representation (see People v Benevento, 91 NY2d 708, 712 [1998]).Scheinkman, P.J., Roman, Connolly and Iannacci, JJ., concur.