Opinion
816 KA 16-01771
12-23-2021
The PEOPLE of the State of New York, Respondent, v. Toni A. PORTER, Defendant-Appellant.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting her upon a plea of guilty of criminal possession of a controlled substance in the fifth degree ( Penal Law § 220.06 [2] ), defendant contends that Supreme Court erred in refusing to suppress her statements to the police and certain physical evidence that the officers observed during a protective sweep of her house. Even assuming, arguendo, that the court's statements during the plea proceeding establish that before defendant entered her plea the court "implicitly but conclusively denied that part of defendant's omnibus motion seeking to suppress physical evidence and statements that [s]he made to the police" ( People v. Gates , 152 A.D.3d 1222, 1223, 59 N.Y.S.3d 636 [4th Dept. 2017], affd 31 N.Y.3d 1028, 75 N.Y.S.3d 468, 99 N.E.3d 861 [2018] ) and thus that the suppression issues are properly before us (see CPL 710.70 [2] ; see generally People v. Elmer , 19 N.Y.3d 501, 509, 950 N.Y.S.2d 77, 973 N.E.2d 172 [2012] ), we conclude that the court properly refused to suppress the fruits of the search. Here, the record from the suppression hearing establishes that several police officers responded to a notification that a burglar alarm had been activated at the rear door of a location that was defendant's residence. Upon arrival, the officers found that the door was ajar. They yelled into the house, but no one responded. The officers thereafter conducted a security sweep of the house, during which they located a weapon. Defendant later made statements to the police. We conclude that, because "the officers had reasonable grounds to believe that there was an emergency at the [residence] requiring their immediate assistance for the protection of life or property" ( People v. McKnight , 261 A.D.2d 926, 926, 689 N.Y.S.2d 832 [4th Dept. 1999], lv denied 94 N.Y.2d 826, 702 N.Y.S.2d 596, 724 N.E.2d 388 [1999] ), they "were not ‘constitutionally precluded from conducting a protective sweep to ascertain whether any armed [or injured] persons were inside’ " ( People v. Junious , 145 A.D.3d 1606, 1608-1609, 45 N.Y.S.3d 734 [4th Dept. 2016], lv denied 29 N.Y.3d 1033, 62 N.Y.S.3d 302, 84 N.E.3d 974 [2017], reconsideration denied 29 N.Y.3d 1129, 64 N.Y.S.3d 679, 86 N.E.3d 571 [2017] ).
Defendant failed to address in her brief on appeal the remaining grounds for suppression that she raised in the motion court, and we thus deem any contentions with respect thereto abandoned (see generally People v. Dombrowski , 87 A.D.3d 1267, 1267, 930 N.Y.S.2d 321 [4th Dept. 2011] ).
We reject defendant's further contention that the court erred in refusing to hold a Franks/Alfinito hearing with respect to the search warrant application used to secure a search warrant following the protective sweep (see Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 [1978] ; People v. Alfinito , 16 N.Y.2d 181, 264 N.Y.S.2d 243, 211 N.E.2d 644 [1965] ). Defendant failed to make " ‘a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard of the truth, was included by the affiant in the [search] warrant affidavit, and ... [that such] statement [was] necessary to the finding of probable cause’ " ( People v. Binion , 100 A.D.3d 1514, 1514-1515, 954 N.Y.S.2d 369 [4th Dept. 2012], lv denied 21 N.Y.3d 911, 966 N.Y.S.2d 362, 988 N.E.2d 891 [2013], quoting Franks , 438 U.S. at 155-156, 98 S.Ct. 2674 ; see People v. Barnes , 139 A.D.3d 1371, 1373-1374, 30 N.Y.S.3d 787 [4th Dept. 2016], lv denied 28 N.Y.3d 926, 40 N.Y.S.3d 355, 63 N.E.3d 75 [2016] ; see generally People v. Tambe , 71 N.Y.2d 492, 504, 527 N.Y.S.2d 372, 522 N.E.2d 448 [1988] ).
Defendant's contention that she was denied effective assistance of counsel does not survive her plea of guilty because she has not established that any deficiencies in defense counsel's performance infected the plea bargaining process or that she ultimately decided to enter the plea based on defense counsel's allegedly poor performance (see People v. Goforth , 122 A.D.3d 1310, 1310, 995 N.Y.S.2d 431 [4th Dept. 2014], lv denied 25 N.Y.3d 951, 7 N.Y.S.3d 280, 30 N.E.3d 171 [2015] ; see also People v. Ware , 159 A.D.3d 1401, 1402, 72 N.Y.S.3d 676 [4th Dept. 2018], lv denied 31 N.Y.3d 1122, 81 N.Y.S.3d 382, 106 N.E.3d 765 [2018] ).