Opinion
164 KA 16-01902
04-30-2021
The PEOPLE of the State of New York, Respondent, v. Stephen R. MCLAUGHLIN, Jr., Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CARNI, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of murder in the second degree ( Penal Law § 125.25 [1] ). As an initial matter, we agree with defendant that he did not validly waive his right to appeal because County Court's oral colloquy and the written waiver of the right to appeal provided defendant with erroneous information about the scope of that waiver and failed to identify that certain rights would survive the waiver (see People v. Thomas , 34 N.Y.3d 545, 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; People v. Crogan , 181 A.D.3d 1212, 1212-1213, 118 N.Y.S.3d 484 [4th Dept. 2020], lv denied 35 N.Y.3d 1026, 126 N.Y.S.3d 31, 149 N.E.3d 869 [2020] ).
We reject defendant's contention that the court erred in refusing to suppress evidence obtained as the result of warrantless searches of the home in which defendant resided and the surrounding premises. "It is well established that the police need not procure a warrant in order to conduct a lawful search when they have obtained the voluntary consent of a party possessing the requisite authority or control over the premises or property to be inspected" ( People v. Adams , 53 N.Y.2d 1, 8, 439 N.Y.S.2d 877, 422 N.E.2d 537 [1981], rearg denied 54 N.Y.2d 832, 443 N.Y.S.2d 1031, 427 N.E.2d 1192 [1981], cert denied 454 U.S. 854, 102 S.Ct. 301, 70 L.Ed.2d 148 [1981] ). Here, the testimony at the suppression hearing established that the homeowner "read the form containing the consent to search the premises, indicated that he understood it, and signed it" ( People v. Colon , 151 A.D.3d 1915, 1918, 57 N.Y.S.3d 844 [4th Dept. 2017] ). We conclude, under the totality of the circumstances, that the homeowner provided voluntary consent and was not "under duress or compelled by law enforcement to consent to the search" ( People v. Nance , 132 A.D.3d 1389, 1389, 17 N.Y.S.3d 261 [4th Dept. 2015], lv denied 26 N.Y.3d 1091, 23 N.Y.S.3d 647, 44 N.E.3d 945 [2015] ).
Contrary to defendant's further contention, the court did not err in refusing to suppress evidence obtained during the execution of a warrant to search defendant's cell phone. "It is well settled that a search warrant may be issued only upon a showing of probable cause to believe that a crime has occurred, is occurring, or is about to occur ..., and where there is sufficient evidence from which to form a reasonable belief that evidence of the crime may be found inside the location sought to be searched" ( People v. Moxley , 137 A.D.3d 1655, 1656, 28 N.Y.S.3d 514 [4th Dept. 2016] ). Here, the factual allegations in the warrant application "provided probable cause to search the cell phone that was recovered from defendant at the time of his arrest" ( People v. Hackett , 166 A.D.3d 1483, 1484, 87 N.Y.S.3d 413 [4th Dept. 2018], lv denied 32 N.Y.3d 1204, 99 N.Y.S.3d 245, 122 N.E.3d 1158 [2019], reconsideration denied 33 N.Y.3d 949, 100 N.Y.S.3d 174, 123 N.E.3d 833 [2019] ).