People v. Taylor

• Decision Date: 06 July 2012
• Parties: The PEOPLE of the State of New York, Respondent, v. Gabriel TAYLOR, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 1139

947 N.Y.S.2d 871

2012 N.Y. Slip Op. 05463

The PEOPLE of the State of New York, Respondent,

v.Gabriel TAYLOR, Defendant–Appellant.

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

July 6, 2012.

David J. Pajak, Alden, for Defendant–Appellant.

Gabriel Taylor, Defendant–Appellant Pro Se.

Frank A. Sedita, III, District Attorney, Buffalo (Ashley Rae Small of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND SCONIERS, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him following a jury trial of, inter alia, two counts of robbery in the first degree (Penal Law § 160.15[1], [2] ) and three counts of attempted murder in the first degree (§§ 110.00, 125.27[1][a][vii]; [b] ). We reject defendant's contention that Supreme Court erred in refusing to suppress tangible evidence seized from his residence and any statements that he allegedly made during the search of that residence as the fruit of an unlawful search. In seeking suppression, defendant contended that police officers “illegally and improperly bypassed the requirement of obtaining a valid search warrant by masking the visit of the defendant's residence and search of his room as a parole visit.” We conclude, however, that the search was “rationally and reasonably related to the performance of [the parole officer's] duty as a parole officer” ( People v. Huntley, 43 N.Y.2d 175, 179, 401 N.Y.S.2d 31, 371 N.E.2d 794;see People v. Nappi, 83 A.D.3d 1592, 1593–1594, 922 N.Y.S.2d 669,lv. denied17 N.Y.3d 820, 929 N.Y.S.2d 808, 954 N.E.2d 99;People v. Van Buren, 198 A.D.2d 533, 534, 604 N.Y.S.2d 188,lv. denied83 N.Y.2d 811, 611 N.Y.S.2d 147, 633 N.E.2d 502).

While investigating the robbery, police officers began to suspect that defendant, a parolee, was involved. At approximately 11:00 p.m. on the night of the robbery, the police officers contacted the parole officer whose duty it was to locate parolees, in order to obtain defendant's most recent address. The police officers did not inform the parole officer of their reason for needing that information. After obtaining the requested information for the police officers, the parole officer informed the police officers that he was going to go to the residence “to verify if [defendant] was home” because defendant had a curfew of 10:00 p.m. Inasmuch as it was the policy of the Division of Parole to have at least two officers present for any home visit made after 10:00 p.m., the parole officer asked the police officers if they would accompany him. We thus conclude that the parole officer was “pursuing parole-related objectives” in going to defendant's residence ( People v. Peterson, 6 A.D.3d 363, 364, 777 N.Y.S.2d 48,lv. denied3 N.Y.3d 710, 785 N.Y.S.2d 38, 818 N.E.2d 680;see People v. Vann, 92 A.D.3d 702, 702–703, 938 N.Y.S.2d 182,lv. denied19 N.Y.3d 868, 947 N.Y.S.2d 417, 970 N.E.2d 440; People v. Felder, 272 A.D.2d 884, 708 N.Y.S.2d 774,lv. denied95 N.Y.2d 905, 716 N.Y.S.2d 646, 739 N.E.2d 1151;People v. Smith, 234 A.D.2d 1002, 651 N.Y.S.2d 807,lv. denied89 N.Y.2d 988, 656 N.Y.S.2d 747, 678 N.E.2d 1363;cf. People v. Mackie, 77 A.D.2d 778, 779, 430 N.Y.S.2d 733).

When the parole officer and police officers arrived at defendant's residence, they were informed by a woman who identified herself as defendant's aunt that defendant was not home. At that point it was apparent that defendant was in violation of his parole, and “the parole officer's conduct in searching the [residence] for a possible explanation of [defendant's] otherwise unexplained failure to [be present] was permissible” ( Huntley, 43 N.Y.2d at 182, 401 N.Y.S.2d 31, 371 N.E.2d 794). While the parole officer and police officers were present at the residence, a person who identified himself as defendant telephoned the residence and was overheard making certain statements. Inasmuch as the search of the residence was lawful, there is no basis to suppress those statements.

We agree with defendant, however, that the court erred in admitting in evidence an inoperable handgun that was found during that search. It is undisputed that the gun, which was seized from the living room couch upon which defendant slept, was not the same gun that was used in the robbery. Although we concluded herein that the tangible evidence seized from defendant's residence, which evidence included the gun, was not subject to suppression as the fruit of an unlawful search, we nevertheless conclude that the gun was not admissible under any Molineux exception. While the People contend that the gun was admissible to explain the statements made by defendant on the phone to his aunt, we reject that contention and conclude that the gun could not “logically be linked to [any] specific material issue in the case” ( People v. Hudy, 73 N.Y.2d 40, 54, 538 N.Y.S.2d 197, 535 N.E.2d 250). We thus conclude that the probative force of that evidence did not outweigh its potential for prejudice ( see People v. Pittman, 49 A.D.3d 1166, 1167, 854 N.Y.S.2d 623;People v. Carter, 31 A.D.3d 1167, 1168, 818 N.Y.S.2d 380;see generally People v. Ventimiglia, 52 N.Y.2d 350, 359–360, 438 N.Y.S.2d 261, 420 N.E.2d 59). We conclude, however, that the error is harmless. The evidence of defendant's guilt is overwhelming, and “there [is] no significant probability that the jury would have acquitted [defendant] had the proscribed evidence not been introduced” ( People v. Kello, 96 N.Y.2d 740, 744, 723 N.Y.S.2d 111, 746 N.E.2d 166;see People v. Arafet, 13 N.Y.3d 460, 466–467, 892 N.Y.S.2d 812, 920 N.E.2d 919;see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787). Defendant was positively identified by an eyewitness to the incident. Defendant and the eyewitness were acquaintances, and the eyewitness had conversed with defendant outside the convenience store just minutes before the robbery. Although the eyewitness was an “[e]x crack head” who had a criminal history, his version of events was corroborated by the surveillance video from the convenience store where the robbery occurred, and by three employees of the store and a security guard from a neighboring business. In addition, defendant made numerous incriminating statements when he...