People v. Lopez

Nov 15, 2001
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—Judgment, Supreme Court, New York County (Carol Berkman, J., at hearing; Michael Obús, J., at jury trial and sentence), rendered June 9, 2000, convicting defendant of criminal possession of a controlled substance in the first degree, and sentencing him to a term of 16 years to life, unanimously affirmed.

The court properly denied defendant’s motion to suppress *71physical evidence. Parole officers accompanied by police officers lawfully entered the apartment of defendant, a parolee, without a warrant since the parole officers’ conduct was rationally and reasonably related to the performance of their official duties (see, People v Hale, 93 NY2d 454; People v Huntley, 43 NY2d 175; People v Felder, 272 AD2d 884, lv denied 95 NY2d 905). There is no evidence that the parole officers were acting as a conduit for police activity. Moreover, defendant consented to home entries and searches by parole officers as a condition of his parole (see, People v Hale, supra). Further, the apartment where defendant was seized was not the home in which he was permitted to reside. While the defendant in Hale was on probation rather than parole, that case is indistinguishable because, like the instant case, it involved consent to search as a condition of supervised release.

We reject defendant’s contention that suppression was nevertheless required because his arrest without a parole violation warrant was contrary to Executive Law § 259-i (3) (a) (i). The parole officers did not actually “retake” defendant on a parole violation since the accompanying police arrested him after drugs were found in his apartment in plain view. In any event, the exclusionary rule should not be applied because the error, if any, was not of constitutional dimension (see, People v Dyla, 142 AD2d 423, 433-442, lov denied 74 NY2d 808; see also, People v Patterson, 78 NY2d 711; Matter of Emilio M., 37 NY2d 173). Concur — Sullivan, P. J., Mazzarelli, Wallach, Rubin and Friedman, JJ.