Opinion
2014-01-3
The PEOPLE of the State of New York, Respondent, v. Brian F. BRITTON, Defendant–Appellant.
Leanne Lapp, Public Defender, Canandaigua, The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua (Robert C. Jeffries of Counsel), for Respondent.
Leanne Lapp, Public Defender, Canandaigua, The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua (Robert C. Jeffries of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, attempted kidnapping in the second degree (Penal Law §§ 110.00, 135.20). Defendant's contention that he was unlawfully arrested in his home without an arrest warrant in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 is unpreserved for our review inasmuch as he failed to raise it before County Court ( see People v. Smith, 55 N.Y.2d 888, 890, 449 N.Y.S.2d 19, 433 N.E.2d 1267; People v. Long, 195 A.D.2d 610, 610, 602 N.Y.S.2d 549, lv. denied82 N.Y.2d 756, 603 N.Y.S.2d 998, 624 N.E.2d 184; People v. Sneed, 191 A.D.2d 969, 969–970, 595 N.Y.S.2d 341), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ). We reject defendant's contention that the search of his apartment was unlawful because the police lacked a search warrant or valid consent to search, and thus that the court erred in refusing to suppress the rifle obtained by the police during the search of this apartment. The People met their burden of establishing that the police reasonably believed that defendant's wife, the complainant, had the requisite authority to consent to the search of the apartment ( see People v. Gonzalez, 88 N.Y.2d 289, 295, 644 N.Y.S.2d 673, 667 N.E.2d 323; People v. Littleton, 62 A.D.3d 1267, 1269, 878 N.Y.S.2d 540, lv. denied12 N.Y.3d 926, 884 N.Y.S.2d 708, 912 N.E.2d 1089). The evidence at the suppression hearing established that police officers responded to a report of a domestic dispute possibly involving a gun at defendant's apartment. As the police approached the door of the apartment, they heard a male yelling and a female crying. After defendant was removed from the apartment, the complainant permitted the police to enter the apartment and informed them that she lived there. The complainant then told the police that defendant had threatened her with a gun and directed the officers to the location of the rifle. The rifle was located in a closet inside the doorway to the apartment. The complainant consented to the seizure of the rifle and, indeed, asked the police to remove it for her safety. Thus, “the record establishes that the searching officer[s] relied in good faith on the apparentauthority of [the complainant] to consent to the search, and the circumstances reasonably indicated that [she] had the requisite authority to consent to the search” (People v. Fontaine, 27 A.D.3d 1144, 1145, 815 N.Y.S.2d 375, lv. denied6 N.Y.3d 847, 816 N.Y.S.2d 753, 849 N.E.2d 976; see People v. Smith, 101 A.D.3d 1794, 1795, 958 N.Y.S.2d 253, lv. denied20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538; see generally People v. Scott, 31 A.D.3d 1165, 1165–1166, 817 N.Y.S.2d 822, lv. denied7 N.Y.3d 851, 823 N.Y.S.2d 780, 857 N.E.2d 75).
Finally, defendant further contends that the court erred in refusing to suppress the rifle seized from his apartment as the result of an arrest that was made without probable cause. Although defendant moved to suppress the rifle on that ground, he abandoned it by expressly limiting the scope of the suppression hearing to the legality of the search of his apartment and the seizure of the rifle and, furthermore, by failing to seek a ruling on that part of his omnibus motion ( see generally People v. Adams, 90 A.D.3d 1508, 1509, 936 N.Y.S.2d 406, lv. denied18 N.Y.3d 954, 944 N.Y.S.2d 483, 967 N.E.2d 708; People v. Adger, 83 A.D.3d 1590, 1591, 921 N.Y.S.2d 436, lv. denied17 N.Y.3d 857, 932 N.Y.S.2d 22, 956 N.E.2d 803; People v. Nix, 78 A.D.3d 1698, 1698–1699, 912 N.Y.S.2d 832, lv. denied16 N.Y.3d 799, 919 N.Y.S.2d 515, 944 N.E.2d 1155, cert. denied ––– U.S. ––––, 132 S.Ct. 157, 181 L.Ed.2d 72; People v. Bigelow, 68 A.D.3d 1127, 1128, 892 N.Y.S.2d 449, lv. denied14 N.Y.3d 797, 899 N.Y.S.2d 131, 925 N.E.2d 935).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.