People v. Lively

• Citation: 82 N.Y.S.3d 671,163 A.D.3d 1466
• Decision Date: 25 July 2018
• Docket Number: 600,KA 13–01192
• Parties: The PEOPLE of the State of New York, Respondent, v. Devonte S. LIVELY, Defendant–Appellant.
• Court: New York Supreme Court Appellate Division

163 A.D.3d 1466
82 N.Y.S.3d 671

The PEOPLE of the State of New York, Respondent,
v.
Devonte S. LIVELY, Defendant–Appellant.

600
KA 13–01192

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: July 25, 2018

EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT–APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., CARNI, LINDLEY, AND CURRAN, JJ.

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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 a jury verdict of murder in the second degree ( Penal Law § 125.25[1] ), defendant contends that he was denied effective assistance of counsel and was denied a fair trial by prosecutorial misconduct. We reject both contentions.

Viewing the evidence, the law and the circumstances of the case as a whole and as of the time of the representation, we conclude that defendant was afforded meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). Defendant specifically contends that defense counsel was ineffective in failing to make a timely motion to suppress evidence that the police had obtained from a garbage tote located directly outside the attached garage of his grandmother's house. Although we agree with defendant that the search of the garbage tote in the curtilage of his grandmother's house is presumably unconstitutional (see People v. Morris, 126 A.D.3d 813, 814, 4 N.Y.S.3d 305 [2d Dept. 2015], lv denied 25 N.Y.3d 1168, 15 N.Y.S.3d 300, 36 N.E.3d 103 [2015], citing Florida v. Jardines, 569 U.S. 1, 5–6, 133 S.Ct. 1409, 185 L.Ed.2d 495 [2013], and Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 [1984] ; cf. California v. Greenwood, 486 U.S. 35, 39–40, 108 S.Ct. 1625, 100 L.Ed.2d 30 [1988] ; People v. Ramirez–Portoreal, 88 N.Y.2d 99, 113, 643 N.Y.S.2d 502, 666 N.E.2d 207 [1996] ), we conclude that, in light of the particular circumstances that led the police officers to the premises in search of a recently missing 17–year–old girl, that limited search fell within the recognized emergency exception to the warrant requirement (see People v. Krom, 61 N.Y.2d 187, 198–199, 473 N.Y.S.2d 139, 461 N.E.2d 276 [1984] ; see also People v. Doll, 21 N.Y.3d 665, 670–671, 975 N.Y.S.2d 721, 998 N.E.2d 384 [2013], rearg denied 22 N.Y.3d 1053, 981 N.Y.S.2d 359, 4 N.E.3d 371 [2014], cert denied 572 U.S. 1022, 134 S.Ct. 1552, 188 L.Ed.2d 568 [2014] ). Thus, even assuming, arguendo, that defendant had standing to challenge the search of the tote located at his grandmother's home (see People v. Hill, 153 A.D.3d 413, 416, 60 N.Y.S.3d 23 [1st Dept. 2017] ; cf. People v. Ponder, 54 N.Y.2d 160, 166, 445 N.Y.S.2d 57, 429 N.E.2d 735 [1981] ), we conclude that the motion to suppress evidence obtained from the tote, if timely made, would not have been successful and that defense counsel was not ineffective in failing to make that motion in a timely manner (see generally People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ).

Defendant also contends that defense counsel was ineffective in failing to make a timely motion to suppress historical cell site location information (CSLI) and text messages sent to and received by a cellular phone being used by defendant. The CSLI and text messages were obtained from the cellular service provider's records. We note as a preliminary matter that it is of no moment that the phone was not registered to defendant. "One need not be the owner of the property for his [or her] privacy interest to be one that the Fourth Amendment protects, so long as he

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[or she] has the right to exclude others from dealing with the property" ( United States v. Perea, 986 F.2d 633, 639–640 [2d Cir. 1993] ; see United States v. Ashburn, 76 F.Supp.3d 401, 412 [E.D. N.Y. 2014] ). Here, although the phone was registered to defendant's relative, it is undisputed that the phone was used exclusively by defendant.

With respect to the merits of defendant's contentions, the Supreme Court recently held that "an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI" ( Carpenter v. United...