Opinion
688 KA 21-00158
09-29-2023
The PEOPLE of the State of New York, Respondent, v. Ja'Quon SNELL, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT. JA'QUON SNELL, DEFENDANT-APPELLANT PRO SE. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MINDY F. VANLEUVAN OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
JA'QUON SNELL, DEFENDANT-APPELLANT PRO SE.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MINDY F. VANLEUVAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., MONTOUR, GREENWOOD, NOWAK, AND DELCONTE, 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 criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ), defendant contends in his main and pro se supplemental briefs that County Court erred in refusing to suppress evidence found in his bedroom during a warrantless search of his residence by parole officers. We reject that contention. "A search which would be unlawful if directed against an ordinary citizen may be proper if conducted against a parolee" ( People v. McMillan , 130 A.D.3d 651, 653, 12 N.Y.S.3d 301 [2d Dept. 2015], affd 29 N.Y.3d 145, 53 N.Y.S.3d 590, 75 N.E.3d 1151 [2017] ). The record supports the court's determination that the search of defendant's residence was " ‘rationally and reasonably related to the performance of the parole officer[s’] dut[ies]’ and was therefore lawful" ( People v. Johnson , 94 A.D.3d 1529, 1532, 942 N.Y.S.2d 738 [4th Dept. 2012], lv denied 19 N.Y.3d 974, 950 N.Y.S.2d 357, 973 N.E.2d 767 [2012] ; see People v. Huntley , 43 N.Y.2d 175, 179, 401 N.Y.S.2d 31, 371 N.E.2d 794 [1977] ).
Defendant further contends in his main brief that the search was unlawful because it was not authorized or performed by defendant's parole officer, but by other parole officers. Defendant did not raise that contention in his motion papers, during the hearing, or in his posthearing submission, and it is therefore not preserved for our review (see People v. Socciarelli , 203 A.D.3d 1556, 1558, 164 N.Y.S.3d 749 [4th Dept. 2022], lv denied 38 N.Y.3d 1035, 169 N.Y.S.3d 241, 242, 189 N.E.3d 348, 349 [2022]; People v. Jackson , 202 A.D.3d 1447, 1448-1449, 161 N.Y.S.3d 618 [4th Dept. 2022], lv denied 38 N.Y.3d 951, 165 N.Y.S.3d 475, 185 N.E.3d 996 [2022] ). In any event, it is without merit. The evidence at the suppression hearing established that a parole officer obtained information that defendant made a social media post depicting himself holding what appeared to be a firearm, which was a violation of his parole. The parole officer attempted to contact defendant's parole officer, but he was not on duty. The parole officer contacted his supervisor, who authorized him to conduct a search of defendant's residence with other parole officers. We conclude that the fact that the search was not authorized or conducted by defendant's assigned parole officer does not render the search unlawful (see generally McMillan , 29 N.Y.3d at 148-149, 53 N.Y.S.3d 590, 75 N.E.3d 1151 ).
We have considered the remaining contentions in the main and pro se supplemental briefs and conclude that they are without merit.