Opinion
973 KA 16-01475
12-23-2020
The PEOPLE of the State of New York, Respondent, v. Joseph RODRIGUEZ, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (HELEN SYME OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (HELEN SYME OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of two counts of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16 [1], [12] ), defendant challenges Supreme Court's refusal to suppress the drugs and paraphernalia discovered inside a locked bedroom at his home. We affirm.
As the court correctly determined, defendant's statement to law enforcement to "do what you gotta do," paired with his additional statement to the effect of either "go ahead and open that door" or "you can go in there," constituted the requisite "unequivocal" consent to search the locked bedroom ( People v. Gonzalez , 39 N.Y.2d 122, 128, 383 N.Y.S.2d 215, 347 N.E.2d 575 [1976] ; see e.g. United States v. Franklin , 2006 WL 662016, *3 [D. Mass., Mar. 15, 2006], affd 630 F.3d 53 [1st Cir. 2011], cert denied 563 U.S. 998, 131 S.Ct. 2466, 179 L.Ed.2d 1228 [2011] ; see also United States v. Broadnax , 623 Fed. Appx. 335, 336 [9th Cir. 2015], cert denied ––– U.S. ––––, 136 S. Ct. 2038, 195 L.Ed.2d 238 [2016] ; United States v. Antone-Herron , 593 Fed. Appx. 960, 964 [11th Cir. 2014] ). Moreover, the testimony at the suppression hearing supports the court's determination that defendant's consent was voluntary under the circumstances (see People v. Favors , 180 A.D.3d 1375, 1375, 118 N.Y.S.3d 901 [4th Dept. 2020], lv denied 35 N.Y.3d 969, 125 N.Y.S.3d 34, 148 N.E.3d 498 [2020] ; People v. Gray , 152 A.D.3d 1068, 1070, 59 N.Y.S.3d 580 [3d Dept. 2017], lv denied 30 N.Y.3d 980, 67 N.Y.S.3d 582, 89 N.E.3d 1262 [2017] ; see generally Gonzalez , 39 N.Y.2d at 127-130, 383 N.Y.S.2d 215, 347 N.E.2d 575 ). Contrary to defendant's contention, his consent was not rendered involuntary by the parole officer's promise to seek judicial authorization for the search should defendant refuse consent (see People v. Storelli , 216 A.D.2d 891, 891, 629 N.Y.S.2d 353 [4th Dept. 1995], lv denied 86 N.Y.2d 803, 632 N.Y.S.2d 516, 656 N.E.2d 615 [1995] ).
Defendant's challenge to his own authority to authorize the search of the locked bedroom is unpreserved for appellate review, and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see People v. Walters , 124 A.D.3d 1321, 1322, 999 N.Y.S.2d 650 [4th Dept. 2015], lv denied 25 N.Y.3d 1209, 16 N.Y.S.3d 531, 37 N.E.3d 1174 [2015] ). The parties' remaining arguments, which all relate to a potential alternative ground for affirmance, are academic in light of our determination.