Opinion
No. 469 KA 23-00918
07-26-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. PHILLIP MOORE, DEFENDANT-APPELLANT.
ROSENBERG LAW FIRM, BROOKLYN (JONATHAN ROSENBERG OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DAVID D. BASSETT OF COUNSEL), FOR RESPONDENT.
ROSENBERG LAW FIRM, BROOKLYN (JONATHAN ROSENBERG OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DAVID D. BASSETT OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, OGDEN, GREENWOOD, AND NOWAK, JJ.
Appeal from a judgment of the Onondaga County Court (Ross P. Andrews, A.J.), rendered October 21, 2022. The judgment convicted defendant, upon a plea of guilty, of criminal possession of a controlled substance in the second degree, criminal possession of a controlled substance in the third degree (three counts), criminal possession of a controlled substance in the fifth degree, and criminally using drug paraphernalia in the second degree (two counts).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a plea of guilty, of one count of criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [1]), three counts of criminal possession of a controlled substance in the third degree (§ 220.16 [1]), one count of criminal possession of a controlled substance in the fifth degree (§ 220.06 [1]), and two counts of criminally using drug paraphernalia in the second degree (§ 220.50 [1], [3]). The conviction arises from a search of defendant's residence conducted by parole officers based on recent parole violations committed by him.
We reject defendant's contention that he received ineffective assistance of counsel. "In the context of a guilty plea, a defendant has been afforded meaningful representation when [the defendant] receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" (People v Brown, 305 A.D.2d 1068, 1069 [4th Dept 2003], lv denied 100 N.Y.2d 579 [2003] [internal quotation marks omitted]). The defendant "must show that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial" (People v Hernandez, 22 N.Y.3d 972, 975 [2013], cert denied 572 U.S. 1070 [2014] [internal quotation marks omitted]). Here, the record establishes that defendant received a favorable plea bargain, and that defendant received meaningful representation (see Brown, 305 A.D.2d at 1069). To the extent that defendant's contention is premised upon defense counsel's failure to move to strike the People's certificate of compliance and failure to move to dismiss the indictment on speedy trial grounds, we note that there is nothing "clear cut about [defendant's] CPL 30.30 claim" (People v Brunner, 16 N.Y.3d 820, 821 [2011]; see People v Valentin, 183 A.D.3d 1271, 1272 [4th Dept 2020], lv denied 35 N.Y.3d 1049 [2020]) and that "its success would have depended on the resolution of several novel issues" in light of the new discovery laws (Brunner, 16 N.Y.3d at 821).
We further reject defendant's contention that his plea was made involuntarily. Any advice from defense counsel concerning his sentencing exposure or the strength of the People's case "does not constitute coercion" (People v Griffin, 120 A.D.3d 1569, 1570 [4th Dept 2014], lv denied 24 N.Y.3d 1084 [2014]).
Defendant also contends that County Court erred in denying his motion to suppress the contraband found at his residence. We reject that contention. "It is well settled that 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 [4th Dept 2015], lv denied 26 N.Y.3d 931 [2015] [internal quotation marks omitted]). The search must be "motivated... by legitimate reasons related to defendant's status as a parolee" (People v Johnson, 94 A.D.3d 1529, 1532 [4th Dept 2012], lv denied 19 N.Y.3d 974 [2012]). A parole officer may search a parolee's home for evidence of a parole violation if the officer has reason to believe that a parolee violated the terms of parole (see People v Snell, 219 A.D.3d 1705, 1705 [4th Dept 2023], lv denied 40 N.Y.3d 1082 [2023]). When searching a home, the officer may look "for evidence of other parole violations" (People v Barnett, 221 A.D.3d 1421, 1422 [4th Dept 2023], lv denied 41 N.Y.3d 964 [2024] [emphasis added]). Here, defendant was on parole. Testimony at a suppression hearing established that, on two occasions shortly before the search of his residence took place, defendant was not at the premises during curfew hours and had thus violated the terms of his parole (see generally Snell, 219 A.D.3d at 1705). Moreover, defendant, as part of his parole conditions, consented to searches of his residence (see Johnson, 94 A.D.3d at 1530).
We have reviewed defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment.
Finally, we note that the certificate of disposition and the uniform sentence and commitment form must be amended to correct a clerical error (see People v Lewis, 185 A.D.3d 1542, 1543 [4th Dept 2020], lv denied 35 N.Y.3d 1114 [2020]). Both the certificate of disposition and the uniform sentence and commitment form erroneously state that defendant was convicted of one of the counts of criminal possession of a controlled substance in the third degree under Penal Law § 220.16 (2), and those documents should therefore be amended to correctly reflect that defendant was convicted of all three counts of that offense under Penal Law § 220.16 (1).