Opinion
637 KA 19-01762
11-17-2023
The PEOPLE of the State of New York, Respondent, v. Deyontay BARNETT, Defendant-Appellant.
DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT. DEYONTAY BARNETT, DEFENDANT-APPELLANT PRO SE. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MINDY F. VANLEUVAN OF COUNSEL), FOR RESPONDENT.
DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.
DEYONTAY BARNETT, DEFENDANT-APPELLANT PRO SE.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MINDY F. VANLEUVAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, OGDEN, GREENWOOD, AND NOWAK, 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 a nonjury verdict of criminal possession of a weapon in the third degree ( Penal Law § 265.02 [1] ). Defendant's parole officer found the weapon when he and his partner arrived at the apartment where defendant was residing, for a routine home visit and curfew check, and observed signs that defendant had been consuming alcohol, which would violate the conditions of defendant's parole. The parole officers then conducted a search of the apartment, and discovered evidence of several additional parole violations, including a loaded handgun in a back bedroom of the apartment.
We reject defendant's contention in his main brief that County Court erred in refusing to suppress the handgun recovered by the parole officers. A parole officer may conduct a warrantless search where "the conduct of the parole officer was rationally and reasonably related to the performance of the parole officer's duty" ( People v. June , 128 A.D.3d 1353, 1354, 7 N.Y.S.3d 773 [4th Dept. 2015], lv denied 26 N.Y.3d 931, 17 N.Y.S.3d 94, 38 N.E.3d 840 [2015] [internal quotation marks omitted]; see People v. Huntley , 43 N.Y.2d 175, 181, 401 N.Y.S.2d 31, 371 N.E.2d 794 [1977] ). Here, the parole officers reasonably suspected that defendant had been consuming alcohol in violation of his parole conditions, and we conclude that their search of the apartment for evidence of other parole violations was rationally and reasonably related to the performance of their duties (see June , 128 A.D.3d at 1354, 7 N.Y.S.3d 773 ; People v. Nappi , 83 A.D.3d 1592, 1593-1594, 922 N.Y.S.2d 669 [4th Dept. 2011], lv denied 17 N.Y.3d 820, 929 N.Y.S.2d 808, 954 N.E.2d 99 [2011] ).
Defendant contends in his main brief that his waiver of the right to a jury trial was not knowing, intelligent, and voluntary. By failing to challenge the adequacy of the allocution related to his jury trial waiver, however, defendant "failed to preserve for our review [his] challenge to the sufficiency of the court's inquiry" ( People v. McCoy , 174 A.D.3d 1379, 1381, 106 N.Y.S.3d 447 [4th Dept. 2019], lv denied 34 N.Y.3d 982, 113 N.Y.S.3d 653, 137 N.E.3d 23 [2019], reconsideration denied 35 N.Y.3d 994, 125 N.Y.S.3d 634, 149 N.E.3d 395 [2020] [internal quotation marks omitted]; see People v. Hailey , 128 A.D.3d 1415, 1415-1416, 7 N.Y.S.3d 808 [4th Dept. 2015], lv denied 26 N.Y.3d 929, 17 N.Y.S.3d 92, 38 N.E.3d 838 [2015] ). In any event, we conclude that defendant's contention lacks merit inasmuch as defendant "waived [his] right to a jury trial in open court and in writing in accordance with the requirements of NY Constitution, art I, § 2 and CPL 320.10 (2) ..., and the record establishes that defendant's waiver was knowing, voluntary and intelligent" ( McCoy , 174 A.D.3d at 1381, 106 N.Y.S.3d 447 ; see People v. Wegman , 2 A.D.3d 1333, 1334, 769 N.Y.S.2d 682 [4th Dept. 2003], lv denied 2 N.Y.3d 747, 778 N.Y.S.2d 473, 810 N.E.2d 926 [2004] ; see generally People v. Smith , 6 N.Y.3d 827, 828, 817 N.Y.S.2d 575, 850 N.E.2d 622 [2006], cert denied 548 U.S. 905, 126 S.Ct. 2971, 165 L.Ed.2d 953 [2006] ).
Defendant further contends in his main brief that the court erred in denying his motion to set aside the verdict based on newly discovered evidence (see CPL 330.30 [3] ). We reject that contention inasmuch as defendant "did not establish that the evidence could not have been discovered before trial by the exercise of due diligence and would probably change the result if a new trial were granted" ( People v. Carrier , 270 A.D.2d 800, 802, 706 N.Y.S.2d 276 [4th Dept. 2000], lv denied 95 N.Y.2d 864, 715 N.Y.S.2d 218, 738 N.E.2d 366 [2000] ; see People v. Thomas , 136 A.D.3d 1390, 1391, 25 N.Y.S.3d 500 [4th Dept. 2016], lv denied 27 N.Y.3d 1140, 39 N.Y.S.3d 122, 61 N.E.3d 521 [2016], reconsideration denied 28 N.Y.3d 974, 43 N.Y.S.3d 262, 66 N.E.3d 8 [2016] ; People v. Robertson , 302 A.D.2d 956, 958, 755 N.Y.S.2d 167 [4th Dept. 2003], lv denied 100 N.Y.2d 542, 763 N.Y.S.2d 8, 793 N.E.2d 422 [2003] ).
Defendant additionally contends in his main brief that the conviction is not supported by legally sufficient evidence and that the verdict is against the weight of the evidence. Viewing the evidence in the light most favorable to the prosecution (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the conviction is supported by legally sufficient evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). In particular, the evidence presented at trial, including the presence of defendant's jacket in the bedroom where the gun was recovered, "went beyond defendant's mere presence in the residence ... and established a particular set of circumstances from which a [finder of fact] could infer possession" ( People v. Boyd , 145 A.D.3d 1481, 1482, 43 N.Y.S.3d 641 [4th Dept. 2016], lv denied 29 N.Y.3d 947, 54 N.Y.S.3d 377, 76 N.E.3d 1080 [2017] [internal quotation marks omitted]; see People v. McGough , 122 A.D.3d 1164, 1166-1167, 998 N.Y.S.2d 232 [3d Dept. 2014], lv denied 24 N.Y.3d 1220, 4 N.Y.S.3d 608, 28 N.E.3d 44 [2015] ). Moreover, viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Finally, we have reviewed the remaining contention in the main brief and the contentions in defendant's pro se supplemental brief and conclude that none warrants modification or reversal of the judgment.