| People v Scharborough |
| 2020 NY Slip Op 08124 [189 AD3d 1964] |
| December 31, 2020 |
| Appellate Division, Third Department |
[*1](December 31, 2020)
| The People of the State of New York,Respondent, v Jeremy A. Scharborough, Appellant. |
Michelle E. Stone, Vestal, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Joseph T. Murphy of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Chemung County (Baker, J.),rendered March 6, 2017, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the fourth degree.
In December 2015, defendant attended a house party in a vacant residence in the City ofElmira, Chemung County. Police responded to the party following a noise complaint and allegedthat, while the responding officers were speaking with the party's host at the front door to theresidence, defendant pushed the door into one of the officers, striking him. Defendant wasarrested and, during a search incident to the arrest, officers discovered five plastic baggies ofcocaine with an aggregate weight of 4.2 grams. Defendant was charged by indictment withcriminal possession of a controlled substance in the fourth degree, resisting arrest and harassmentin the second degree.
Defendant moved to suppress the physical evidence found during the search incident to thearrest, claiming that the officers' warrantless entry into the residence was unlawful. Following asuppression hearing, County Court concluded that defendant was a guest in the vacant residenceand, as such, lacked standing to challenge the warrantless entry. Later, defendant pleaded guiltyto criminal possession of a controlled substance in the fourth degree and was sentenced, as asecond felony offender with a prior violent felony offense, to a prison term of five years followedby three years of postrelease supervision. Defendant appeals.
Defendant first asserts that his guilty plea was involuntary and should be vacated. However,this challenge "is unpreserved for our review as the record does not reflect that defendant madean appropriate postallocution motion, despite the opportunity to do so prior to the imposition ofhis sentence" (People v Gomez, 162AD3d 1311, 1312 [2018], lv denied 32 NY3d 1172 [2019]; see People v Smith, 187 AD3d1246, 1247 [2020]). Moreover, "as the record does not reflect that defendant made anystatements that were inconsistent with [his] guilt, negated an element of the charged crime[ ] orotherwise called into question the voluntariness of [his] plea, the narrow exception to thepreservation requirement was not triggered" (People v Lobao, 178 AD3d 1238, 1239 [2019], lv denied 35NY3d 971 [2020]; see generally People v Lopez, 71 NY2d 662, 666-667 [1988]). To theextent that one of defendant's ineffective assistance claims—the failure of counsel tosecure independent testing of the drugs found on defendant—implicates the validity of hisplea, this claim involves matters outside of the record before us that is more properly the subjectof a CPL article 440 motion (see Peoplev Garry, 133 AD3d 1039, 1040 [2015]; People v Brown, 125 AD3d 1049, 1050 [2015]). Defendant'sremaining ineffective assistance "claim[ ] that [is] unrelated to the voluntariness of his plea [is]foreclosed by his guilty plea" (People vKaid, 163 AD3d 1151[*2], 1152 [2018] [internalquotation marks and citation omitted], lv denied 32 NY3d 1005 [2018]; see People v Elder, 173 AD3d1344, 1346 [2019], lv denied 34 NY3d 930 [2019]).
Defendant further claims that County Court improperly denied his suppression motion, as hehad standing to challenge the warrantless entry. "The Fourth Amendment protects all citizensfrom unreasonable government intrusions into legitimate expectations of privacy" (People vMercado, 68 NY2d 874, 875 [1986] [internal quotation marks, ellipsis and citation omitted]).As pertinent here, "[i]n order to establish standing to allege a violation of one's FourthAmendment rights, a defendant must demonstrate a legitimate expectation of privacy in premisesbelonging to another[,] e.g., an overnight guest or a familial or other socially recognizedrelationship" (People v Crippen, 156AD3d 946, 947-948 [2017] [internal quotation marks and citation omitted]; see generallyPeople v Ortiz, 83 NY2d 840, 842 [1994]).
At the suppression hearing, defendant testified that the party's host—hismother—had organized a party for him in the vacant residence and that she had permissionfrom the property owner to host the party at that location. Defendant admitted that he was a guestof the property owner and denied any intention to remain in the residence beyond the conclusionof the party. The property owner testified that he had "rented" the empty residence to defendant'smother for purposes of holding the party, without charging a fee. He expected that the partygoerswould remain "[until] the party was over," and further stated that, although the partygoers hadcontrol over the space during the party, "they [were] not going to move in." Several witnesses,including defendant, testified that there was no furniture in the residence at the time of the party,and two of the partygoers testified that they had residences elsewhere. Given this testimony, weagree with County Court that defendant did not have a legitimate expectation of privacy whileattending the party at the vacant residence, and find that the court properly denied defendant'smotion to suppress (see People v Ponder, 54 NY2d 160, 166 [1981]; compare Peoplev Mason, 248 AD2d 751, 753 [1998]).
Defendant asserts that his sentence is harsh and excessive. Defendant, a second felonyoffender with a prior violent felony conviction, entered into an open plea agreement, withsentencing left to County Court, and was sentenced to a prison term of five years followed bythree years of postrelease supervision, which is within the permissible statutory range(see Penal Law §§ 60.04 [1], [4]; 70.70 [4] [b] [ii]; 70.45 [2] [d]). Asthe record before us does not present extraordinary circumstances or an abuse of discretionwarranting modification, we decline to disturb the sentence (see People v Hightower, 186 AD3d 926, 932 [2020], lvdenied 35 NY3d 1113 [2020]). Finally, County Court sentenced defendant as a second felonydrug offender [*3]with a prior violent felony offense, but theuniform sentence and commitment form erroneously provides that he was sentenced as a secondfelony offender (compare Penal Law § 70.70 [4] [a], [b] [ii], withPenal Law § 70.70 [3] [a], [b] [ii]; see Penal Law § 70.70 [1][b], [c]). Thus, an amended uniform sentence and commitment form must be prepared thatcorrectly reflects defendant's status as a second felony drug offender with a prior violent felonyoffense (see People v Morrow, 163AD3d 1265, 1266 [2018]).
Egan Jr., Mulvey and Colangelo, JJ., concur. Ordered that the judgment is affirmed, andmatter remitted for entry of an amended uniform sentence and commitment form.