People v. Murray

• Decision Date: 07 May 2021
• Docket Number: KA 19-01654,145
• Citation: 194 A.D.3d 1360,146 N.Y.S.3d 707
• Parties: The PEOPLE of the State of New York, Respondent, v. Julian MURRAY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

194 A.D.3d 1360

146 N.Y.S.3d 707

The PEOPLE of the State of New York, Respondent,

v.Julian MURRAY, Defendant-Appellant.

145

KA 19-01654

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

Entered: May 7, 2021

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., LINDLEY, CURRAN, BANNISTER, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea of criminal possession of a weapon in the third degree ( Penal Law § 265.02 [1] ) and criminal possession of a controlled substance in the seventh degree (§ 220.03). Defendant contends that County Court erred in refusing to suppress evidence seized by parole officers during a search of his residence because the search was based on a tip from an anonymous source that was not corroborated, and neither the source's basis of knowledge nor his or her reliability was established. At the suppression hearing, defendant's parole officer (officer) testified that, during the search of defendant's residence, parole officers found a shotgun in a closet wrapped in a t-shirt and a plastic bag and underneath some clothes. The officer testified that the parole officers searched defendant's residence based on a call the officer received that defendant may be in possession of a firearm. The officer testified that the call came from the Department of Probation, although he could not recall who the probation officer was that made the call. He testified that he probably made an entry in the computer about that call. The court directed the People to make a printout of that entry, the People thereafter provided that document to defense counsel, and the officer was recalled to the stand for further cross-examination. Defense counsel did not ask the officer any additional questions about the tip received from the Department of Probation other than questions about the timing of the call and the subsequent search.

We conclude that defendant's contention is not preserved for our review inasmuch as he failed to raise it before the suppression court (see People v. Cruz , 137 A.D.3d 1158, 1159, 27 N.Y.S.3d 643 [2d Dept. 2016], lv denied 28 N.Y.3d 970, 43 N.Y.S.3d 257, 66 N.E.3d 3 [2016] ; People v. Fulton , 133 A.D.3d 1194, 1195, 19 N.Y.S.3d 152 [4th Dept. 2015], lv denied 26 N.Y.3d 1109, 26 N.Y.S.3d 767, 47 N.E.3d 97 [2016], reconsideration denied 27 N.Y.3d 997, 38 N.Y.S.3d 107, 59 N.E.3d 1219 [2016] ; People v. Rolle , 72 A.D.3d 1393, 1395, 900 N.Y.S.2d 187 [3d Dept. 2010], lv denied 16 N.Y.3d 745, 917 N.Y.S.2d 627, 942 N.E.2d 1052 [2011] ; see also People v. Lanaux , 156 A.D.3d 1459, 1460, 65 N.Y.S.3d 847 [4th Dept. 2017], lv denied 31 N.Y.3d 985, 77 N.Y.S.3d 662, 102 N.E.3d 439 [2018] ). Contrary to defendant's contention, he did not preserve that issue for our review through either that part of his omnibus motion seeking to suppress the evidence or his posthearing memorandum. A question of law with respect to a ruling of a suppression court is preserved for appeal when "a protest thereto was registered, by the party claiming error, at the time of such ruling ... or at any subsequent time when the court had an opportunity of effectively changing the same ..., or if in response to a protest by a party, the court expressly decided the question raised on appeal" ( CPL 470.05 [2] ; see People v. Parker , 32 N.Y.3d 49, 57, 84 N.Y.S.3d 838, 109 N.E.3d 1138 [2018] ; People v. Miranda , 27 N.Y.3d 931, 932, 30 N.Y.S.3d 600, 50 N.E.3d 224 [2016] ). In his omnibus motion, defendant sought, inter alia, suppression of the evidence seized during the search on the ground that the evidence "was taken in violation of ... defendant's constitutional rights" inasmuch as it was done without "a search warrant or probable cause." Those "broad challenges" are insufficient to preserve defendant's present contention ( Parker , 32 N.Y.3d at 58, 84 N.Y.S.3d 838, 109 N.E.3d 1138 ). In defendant's posthearing memorandum, he argued that the search was invalid because there was no warrant or consent to search, that the search was not rationally related to the duties of the officer, and that the parole officers were acting as police officers when conducting the search. He did not raise his present contention that the People were required to prove that the information provided to the officer satisfied the Aguilar-Spinelli test in order for the search to be lawful, even though he was then aware of the basis for the search (cf. People v. Landy , 59 N.Y.2d 369, 374, 465 N.Y.S.2d 857, 452 N.E.2d 1185 [1983] ; see generally People v. John , 27 N.Y.3d 294, 303, 33 N.Y.S.3d 88, 52 N.E.3d 1114 [2016] ). Nor did the court expressly decide that issue (see Parker , 32 N.Y.3d at 57-58, 84 N.Y.S.3d 838, 109 N.E.3d 1138 ; Miranda , 27 N.Y.3d at 932-933, 30 N.Y.S.3d 600, 50 N.E.3d 224 ). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice ( CPL 470.15 [3] [c] ).

Defendant contends that he received ineffective assistance of counsel based on defense counsel's failure to preserve the suppression issue for our review. On a claim of ineffective assistance of counsel, defendant must "demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings" ( People v. Honghirun , 29 N.Y.3d 284, 289, 56 N.Y.S.3d 275, 78 N.E.3d 804 [2017] [internal quotation marks omitted]). In addition, it is well settled that " ‘counsel's efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective’ " ( id. at 290, 56 N.Y.S.3d 275, 78 N.E.3d 804, quoting People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ). On this record, we conclude that defendant failed to meet his burden of establishing the absence of strategic or other legitimate explanations for defense counsel's conduct (see generally People v. Hymes , 34 N.Y.3d 1178, 1178-1179, 122 N.Y.S.3d 587, 145 N.E.3d 224 [2020] ; People v. Garcia , 75 N.Y.2d 973, 974, 556 N.Y.S.2d 505, 555 N.E.2d 902 [1990] ; People v. Freeman , 169 A.D.3d 1513, 1514, 93 N.Y.S.3d 498 [4th Dept. 2019], lv denied 33 N.Y.3d 976, 101 N.Y.S.3d 273, 124 N.E.3d 762 [2019] ). Contrary to defendant's contention, the issue whether the People were required to demonstrate the reliability or credibility of the information obtained from the Department of Probation was not "so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it" ( People v. McGee , 20 N.Y.3d 513, 518, 964 N.Y.S.2d 73, 986 N.E.2d 907 [2013] ; see generally People v. Quinones , 12 N.Y.3d 116, 121-122, 879 N.Y.S.2d 1, 906 N.E.2d 1033 [2009], cert denied 558 U.S. 821, 130 S.Ct. 104, 175 L.Ed.2d 31 [2009] ). Viewing defense counsel's performance in this case in totality "throughout the proceedings, including at the suppression hearing," we conclude that defendant was afforded meaningful representation ( People v. Parson , 27 N.Y.3d 1107, 1108, 36 N.Y.S.3d 85, 55 N.E.3d 1058 [2016] ; see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). "To find otherwise on this record necessitates engaging in the exact form of hindsight review that [the Court of Appeals] has cautioned against in analyzing ineffective assistance of counsel claims" ( Parson , 27 N.Y.3d at 1108, 36 N.Y.S.3d 85, 55 N.E.3d 1058 ).

All concur except Bannister, J., who dissents and votes to reverse in accordance with the following memorandum:

I respectfully dissent. In my view, the warrantless search of defendant's residence by defendant's parole officers in this case was unlawful because the sole reason for the search was essentially an anonymous tip received from an unidentified, unnamed person associated with the "Department of Probation."

Initially, I disagree with my colleagues that defense counsel failed to preserve that issue for our review. Prior to trial, defense counsel filed an omnibus motion seeking, inter alia, to suppress the evidence obtained from the search based on lack of probable cause. Defense counsel further argued that defendant's parole officer acted without authority and that the search was "not merely a parole search." It was the People's burden at the suppression hearing to prove that defendant's parole officer was "reasonably justified" in conducting the warrantless search, which requires consideration of the reason for the search, i.e., here, the tip ( People v. McMillan , 29 N.Y.3d 145, 148, 53 N.Y.S.3d 590, 75 N.E.3d 1151 [2017] ; see generally People v. Huntley , 43 N.Y.2d 175, 181, 401 N.Y.S.2d 31, 371 N.E.2d 794 [1977] ). Moreover, defense counsel did challenge the parole officer's reason for the search on cross-examination when he questioned the parole officer about the tip. Indeed, the hearing was paused for the parole officer to produce the computer entry of the call log with respect to the tip. However, the call log provided no information beyond that provided in the testimony of the parole officer, who simply stated that a tip came in from "someone" at the Department of Probation. Additionally, in the posthearing memorandum, defense counsel argued that the search was unlawful because it was effected without the requisite authorization. Thus, defense counsel continuously challenged the authority for the parole officer's actions. Moreover, "[t]he mere emphasis of one prong of attack over...