Summary
In People v. Escalera, 121 AD3d 1519 (4th Dept 2004), the parole officer testified that she conducted the search because she received credible information from law enforcement that the defendant possessed a large quantity of cocaine in his apartment, which violated his parole conditions, and thus, the search was rationally and reasonably related to the performance of the parole officer's duties.
Summary of this case from People v. JustinianoOpinion
893 KA 12-01719.
10-03-2014
The PEOPLE of the State of New York, Respondent, v. Angel R. ESCALERA, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Alicia M. Lilley of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Alicia M. Lilley of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, LINDLEY, WHALEN, and DeJOSEPH, JJ.
Opinion
MEMORANDUM:On appeal from a judgment convicting him, upon his plea of guilty, of criminal possession of a controlled substance in the first degree (Penal Law § 220.21[1] ), defendant contends that Supreme Court erred in denying his motion to suppress the cocaine found by his parole officer during a search of his apartment. According to defendant, the warrantless search of his apartment was unlawful because the parole officer was acting as an agent of the United States Drug Enforcement Agency (DEA), which lacked sufficient evidence to obtain a warrant. Defendant failed to preserve his contention for our review, inasmuch as he contended at the suppression hearing that his parole officer, in conducting the search in question, was acting as a de facto agent of the local police while, on appeal, he contends that the parole officer was acting on behalf of the DEA (see CPL 470.05[2] ). In any event, we reject defendant's present contention.
A parolee's right to be free from unreasonable searches and seizures is not violated if a parole officer's search of the parolee's person or property “is rationally and reasonably related to the performance of his duty as a parole officer” (People v. Huntley, 43 N.Y.2d 175, 179, 401 N.Y.S.2d 31, 371 N.E.2d 794 ; see People v. Nappi, 83 A.D.3d 1592, 1593–1594, 922 N.Y.S.2d 669, lv. denied 17 N.Y.3d 820, 929 N.Y.S.2d 808, 954 N.E.2d 99 ). A parole officer's search is unlawful, however, when the parole officer is “merely a ‘conduit’ for doing what the police could not do otherwise” (People v. Mackie, 77 A.D.2d 778, 779, 430 N.Y.S.2d 733 ). Stated differently, “a parolee's status ought not to be exploited to allow a search which is designed solely to collect contraband or evidence in aid of the prosecution of an independent criminal investigation” (People v. Candelaria, 63 A.D.2d 85, 90, 406 N.Y.S.2d 783 ).
Here, defendant's contention that the parole officer was acting as an agent of the DEA is undermined by the uncontroverted testimony of the parole officer that she was informed by a DEA agent prior to the search that the federal prosecutor “will most likely not want to get involved” in the case if an arrest were made, and by the fact that no federal charges were ever lodged against defendant. Rather, the parole officer testified that she conducted the search because she received credible information from law enforcement sources that defendant possessed a large quantity of cocaine in his apartment, which violated his parole conditions, and the court found her testimony in that regard to be credible. We thus conclude that the court properly determined that the search was rationally and reasonably related to the performance of the parole officer's duties, and that suppression was therefore not warranted (see People v. Davis, 101 A.D.3d 1778, 1779, 957 N.Y.S.2d 803, lv. denied 20 N.Y.3d 1060, 962 N.Y.S.2d 611, 985 N.E.2d 921 ; People v. Johnson, 94 A.D.3d 1529, 1531–1532, 942 N.Y.S.2d 738, lv. denied 19 N.Y.3d 974, 950 N.Y.S.2d 357, 973 N.E.2d 767 ).
By pleading guilty, defendant forfeited his contention that he was deprived of his right to testify before the grand jury (see People v. Ross, 113 A.D.3d 877, 979 N.Y.S.2d 160 ; People v. Straight, 106 A.D.3d 1190, 1191, 964 N.Y.S.2d 755 ). Defendant, who pleaded guilty after three days of trial, correctly concedes that he failed to preserve for our review his further contention that he was deprived of a fair trial by prosecutorial misconduct because he failed to move to withdraw the plea or to vacate the judgment of conviction on that ground (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. McKeon, 78 A.D.3d 1617, 1618, 910 N.Y.S.2d 623, lv. denied 16 N.Y.3d 799, 919 N.Y.S.2d 515, 944 N.E.2d 1155 ). In any event, that contention is also forfeited by his guilty plea (see generally People v. Parris, 4 N.Y.3d 41, 49, 790 N.Y.S.2d 421, 823 N.E.2d 827, rearg. denied 4 N.Y.3d 847, 797 N.Y.S.2d 423, 830 N.E.2d 322 ).
We have reviewed defendant's remaining contentions and conclude that, even assuming, arguendo, that they survive his guilty plea, they lack merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.