People v. Spirito
| Citation | 2023 NY Slip Op 02353 |
| Decision Date | 04 May 2023 |
| Docket Number | 112309 |
| Parties | The People of the State of New York, Respondent, v. Dominic F. Spirito, Appellant. |
| Court | New York Supreme Court Appellate Division |
Calendar Date: February 22, 2023
John A. Cirando, Syracuse, for appellant.
Kirk O. Martin, District Attorney, Owego (Cheryl A. Mancini of counsel), for respondent.
Before: Egan Jr., J.P., Aarons, Reynolds Fitzgerald and Ceresia, JJ.; Lynch, J., vouched in.
Appeal from a judgment of the County Court of Tioga County (Gerald A. Keene, J.), rendered December 13, 2019, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the third degree (two counts).
Defendant's parole officer, several members of his parole unit and two sheriff's deputies conducted a search of defendant's residence after receiving a tip from defendant's mother - with whom he resided - that she saw a picture of defendant with a gun. During the search, the parole officers located two extended magazines and gun parts in defendant's bedroom. As a result, defendant was indicted on two counts of criminal possession of a weapon in the third degree. Following a suppression hearing, County Court determined that the search was lawful and partially denied defendant's motion to suppress this physical evidence. [1] Defendant thereafter pleaded guilty as charged and was sentenced to a prison term of four years followed by five years of postrelease supervision. Defendant appeals.
The general rules and conditions of release typically require a parolee to submit to a warrantless search by his or her parole officer (see People v Thomas, 211 A.D.3d 1326, 1331 [3d Dept 2022], lv granted 39 N.Y.3d 1081 [2023]). The record evinces that defendant executed such a document. However, (People v Wade 172 A.D.3d 1644, 1644 [3d Dept 2019] [], lv denied 33 N.Y.3d 1109 [2019]; see People v Huntley, 43 N.Y.2d 175, 182-183 [1977]; People v Thomas, 211 A.D.3d at 1331).
The search of defendant's residence, which was based on the mother's tip, was rationally and reasonably related to the performance of the parole officer's duties. The parole officer's testimony at the suppression hearing revealed that defendant had the highest mental health designation from the Department of Corrections and Community Supervision - OMH Level 1-S. He further testified that his supervisor informed him that defendant's mother had called and advised him that she had viewed a picture of defendant holding a gun and that she was worried that he had a gun. The tip from defendant's mother was presumed reliable (see People v Parris, 83 N.Y.2d 342, 350 [1994]; People v Taylor, 61 A.D.3d 537, 538 [1st Dept 2009], lv denied 13 N.Y.3d 750 [2009]), unlike that from an anonymous tipster (compare People v Burry, 52 A.D.3d 856, 858 [3d Dept 2008], lv dismissed 10 N.Y.3d 956 [2008]). As defendant and his mother resided together, had daily interaction, and the mother had knowledge of defendant's current mental health status, the tip was reliable. Although there is no evidence in the record as to when the picture of defendant was taken, defendant resided with the mother. As such, she was cognizant of her son's appearance, his attire and was capable of determining its chronology. Since the information concerning defendant's possible violation of his parole conditions came from his mother, there existed a legitimate reason for the search undertaken and it was substantially related to the performance of the parole officer's duties (see People v Wade, 172 A.D.3d at 1645; People v Lownes, 40 A.D.3d 1269, 1270 [3d Dept 2007], lv denied 9 N.Y.3d 878 [2007]; People v Nelson, 257 A.D.2d 765, 766 [3d Dept 1999], lv denied 93 N.Y.2d 975 [1999]). The motion to suppress the physical evidence was properly denied.
Defendant next contends that his plea was not knowingly, intelligently and voluntarily entered into because County Court, among other things, did not ensure that he fully understood the consequences of pleading guilty. Defendant's challenge to the voluntariness of the plea is not preserved as the record does not reflect that he made an appropriate postallocution motion, despite having an opportunity to make one, and the narrow exception to the preservation requirement is not implicated (see People v Dye, 210 A.D.3d 1192, 1193 [3d Dept 2022], lv denied 39 N.Y.3d 1072 [2023]; People v Hawkins, 207 A.D.3d 814, 815 [3d Dept 2022]; People v Daniels, 193 A.D.3d 1179, 1180 [3d Dept 2021]).
Aarons J. (dissenting). In my view, County Court erred in denying defendant's motion to suppress to the extent that defendant sought suppression of the magazines discovered in his bedroom. Accordingly, I respectfully dissent.
"A defendant who challenges the legality of a search and seizure bears the burden of proving illegality, but the People are required in the first instance to establish the legality of the police conduct" (People v Hofelich, 31 A.D.3d 882, 884-885 [3d Dept 2006] [citation omitted], lv denied 7 N.Y.3d 867 [2006]). The People point to defendant's status as a parolee and the fact that defendant executed the standard form authorizing the search of his residence. Indeed, the People, in their memorandum of law to County Court, justified the search of defendant's bedroom on the basis that it was rationally and reasonably related to the performance of the parole officer's duties of conducting inspections of defendant's residence and helping reintegrate defendant into society.
Although a relevant factor in assessing the validity of a search, the fact that a defendant is a parolee does not amount to a surrender of his or her constitutional rights against unreasonable searches (see People v McMillan, 29 N.Y.3d 145, 148 [2017]; People v Banks, 148 A.D.3d 1359, 1361 [3d Dept 2017]). Furthermore, the form authorizing searches by itself should not be construed "as an unrestricted consent to any and all searches whatsoever or as a blanket waiver of all constitutional rights to be secure from unreasonable searches and seizures" (People v Huntley, 43 N.Y.2d 175, 182 [1977]). There must be more than just some rational connection between the search and the parole officer's duties (see id. at 181). Rather, the search "must also have been substantially related to the performance of duty in the particular circumstances" (id.).
This is not a situation where the parole officer was conducting a routine inspection of defendant's residence or where a parole violation warrant was issued due to defendant's failure to report. Instead, the impetus behind the warrantless search of defendant's residence was a tip from defendant's mother. Defendant thus argues that under the circumstances of this case, the search of his residence was not based upon reasonable suspicion. That said, "[a]n informant's tip may provide the basis for a warrantless search... if the informant (1) is reliable and (2) has some 'basis for the knowledge' justifying [the] conclusion that the subject of the tip was involved in illegal activity" (People v Dunn, 170 A.D.2d 773, 775 [3d Dept 1991], quoting People v Bigelow, 66 N.Y.2d 417, 423 [1985]; see People v Mabeus, 63 A.D.3d 1447, 1450 [3d Dept 2009]; People v Vann, 245 A.D.2d 818, 819 [3d Dept 1997], lv denied 91 N.Y.2d 945 [1998], lv dismissed 91 N.Y.2d 978 [1998]). "The 'basis of knowledge' requirement, focusing on the trustworthiness of the information, can be satisfied either by the informant's own description of underlying circumstances personally observed or, failing this, by police investigation that corroborates defendant's actions or develops information consistent with detailed predictions by the informant" (People v O'Donnell, 146 A.D.2d 923, 924-925 [3d Dept 1989], quoting People v Bigelow, 66 N.Y.2d...
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