| People v Morehouse |
| 2020 NY Slip Op 03048 [183 AD3d 1180] |
| May 28, 2020 |
| Appellate Division, Third Department |
[*1](May 28, 2020)
| The People of the State of New York,Respondent, v Lance Morehouse, Appellant. |
Marlene O. Tuczinski, Chatham, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Taylor Fitzsimmons of counsel),for respondent.
Lynch, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered February 26, 2016, convicting defendant upon his plea ofguilty of the crimes of criminal possession of a controlled substance in the third degreeand criminal possession of a weapon in the third degree.
In July 2015, defendant was charged in a seven-count indictment with, among otherthings, criminal possession of a controlled substance in the third degree and criminalpossession of a weapon in the third degree. In a second indictment, defendant wascharged with criminal possession of a controlled substance in the fourth degree. After hismotion to suppress certain physical evidence was denied, defendant pleaded guilty tocounts 1 and 4 of the first indictment charging him, respectively, with criminalpossession of a controlled substance (morphine tablets) in the third degree and criminalpossession of a weapon (metal or brass knuckles) in the third degree in satisfaction ofboth indictments. Defendant also waived his right to appeal. Pursuant to the pleaagreement, defendant was to be sentenced, as a second felony offender, to a prison termof 6
Defendant maintains, the People concede and we agree that the appeal waiver wasinvalid because County Court failed to advise defendant that the right to appeal isseparate and distinct from the rights automatically forfeited by pleading guilty (see People v Maxwell, 142AD3d 739, 740 [2016]), and also because the court increased the sentence, but failedto inquire into whether defendant wished to withdraw his consent to the appeal waiver(see People v Johnson, 14NY3d 483, 487 [2010]).
We turn next to defendant's contention that County Court erred in denying hismotion to suppress the evidence, seized from his home pursuant to a warrant, whichincluded the morphine tablets and the metal or brass knuckles. Defendant maintains thatthe warrant was issued without probable cause, principally because the warrantapplication was based on defendant's asserted possession of synthetic cannabinoids,which is not illegal under the Penal Law, albeit a violation of the State Sanitary Code.We are not persuaded. Initially, defendant's contention that the court erred in denying hissuppression motion without a hearing has not been preserved for our review becausedefense counsel waived a hearing on the scheduled hearing date. Were this argumentpreserved, we would find that defendant failed to support his request for a hearing withany sworn factual allegations (see CPL 710.60 [3]; People v Gannon, 174 AD3d1054, 1057-1058 [2019], lv denied 34 NY3d 980 [2019]).
A search warrant must be based on probable cause, meaning that there is"information sufficient to support a reasonable belief that an offense has been or is beingcommitted or that evidence of a crime may be found in a certain place" (People vBigelow, 66 NY2d 417, 423 [1985]; accord People v Matthews, 159 AD3d 1111, 1113 [2018]).A search warrant application must include "[a] statement that there is reasonable cause tobelieve that property of a kind or character described in [CPL] 690.10 may be found in orupon a designated or described place" (CPL 690.35 [3] [b]). Personal property that"[c]onstitutes evidence or tends to demonstrate that an offense was committed in thisstate" is subject to seizure (CPL 690.10 [4]). "Offense" is defined as "conduct for whicha sentence to a term of imprisonment or to a fine is provided by any law of this state"(Penal Law § 10.00 [1]). Further, a "[v]iolation" is defined as "an offense. . . for which a sentence to a term of imprisonment in excess of [15] dayscannot be imposed" (Penal Law § 10.00 [3]).
Defendant is correct in asserting that the Penal Law prohibitions against thepossession of controlled substances and marihuana do not specifically include syntheticcannabinoid. However, the Sanitary Code makes it "unlawful for any individual. . . to possess, manufacture, distribute, sell or offer to sell any syntheticphenethylamine or synthetic cannabinoid," with exceptions not applicable here (10NYCRR 9-1.2). Significantly, "[t]he provisions of the [S]anitary [C]ode shall have theforce and effect of law and the non-compliance or non-conformance with any provisionthereof shall constitute a violation punishable on conviction for a first offense bya fine not exceeding [$250] or by imprisonment . . . not exceeding [15]days, or both" (Public Health Law § 229 [emphasis added]). It follows that,by definition, a search warrant may be issued for the alleged possession of syntheticcannabinoids (see Public Health Law § 229; People v Scott, 174 AD3d1049, 1050 [2019]; 10 NYCRR 9-1.1 [b]; 9-1.2).
The search warrant application was presented to County Court by Terry Markham, aninvestigator with the Washington County Sheriff's Department. The application specifiedthat the personal property sought consisted of "[s]ynthetic [c]annabinoids, mari[h]uanaand other [c]ontrolled substances and paraphernalia for transporting, packaging,weighing, cutting, testing, distributing, and identifying controlled substances." In hissupporting affidavit, Markham explained that two neighbors complained of heavy trafficin and out of defendant's home throughout the day and night, raising concerns of drugsales. Markham also received information from a confidential informant, who hadassisted Markham in past cases, that defendant was selling "one thousand bags of 'posh' aweek"—which Markham knew as a slang term for synthetic cannabis—aswell as heroin, cocaine and marihuana. A week before Markham applied for the warrant,the confidential informant informed Markham that defendant had obtained "a bunch ofweed and posh and it[']s at his house" and that if Markham "move[d] quickly," he could"nab [defendant] with a pretty good amount . . . [—five pounds] ofweed and several hundred bags of cash." Markham also recounted that, after deputiesconducted a traffic stop of a vehicle that had left defendant's residence, a consent searchuncovered a small package of "posh," which the driver admitted he obtained fromdefendant. In our view, the search warrant was supported by probable cause thatdefendant possessed and was selling both marihuana and synthetic cannabinoids. Thus,we find no error in County Court's denial of defendant's motion to suppress (see People v Jackson, 176AD3d 1312, 1313-1314 [2019]; People v Elder, 173 AD3d 1344, 1345 [2019], lvdenied 34 NY3d 930 [2019]; People v Brown, 167 AD3d 1331, 1333 [2018]).
Next, defendant's claim of ineffective assistance of counsel was not preserved for ourreview by an appropriate postallocution motion, despite defendant having an ampleopportunity to do so (see Peoplev Schmidt, 179 AD3d 1384, 1385 [2020]). Nor did defendant make anystatements during the plea colloquy triggering an exception to the preservationrequirement (see People vInman, 177 AD3d 1167, 1168 [2019]). Defendant also failed to preserve hiscontention that County Court erred in imposing a longer sentence for his possession of aweapon conviction as he did not challenge it, acknowledging that the increased minimumsentence was required. Lastly, the court did not abuse its discretion by imposing theagreed-upon sentence as it is neither harsh nor excessive (see People v Gilmore, 177AD3d 1029, 1029 [2019]).[FN*] Defendant's remaining contentions, tothe extent that they are not specifically addressed, have been examined and found to bewithout merit.
Garry, P.J., Egan Jr., Mulvey and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.
Footnote *:We are mindful that thedeterminate sentence imposed on the criminal possession of a controlled substanceconviction would be authorized where defendant was sentenced as a second felony drugdefender (see Penal Law §§ 70.00 [1]; 70.70 [3] [b] [i]). Atsentencing, defendant acknowledged that he had previously been convicted of criminalpossession of a controlled substance in the third degree.