People v. McMillanPeople v. McMillan
Ordered that the judgment is affirmed.
The detective testified that he had been searching for the defendant, for whom a parole warrant had been issued based upon approximately 14 different parole violations. To that end, the detective went to an address in Queens, spoke with a girlfriend or ex-girlfriend of the defendant, and gave her his phone number. The detective further testified that, on the day of the arrest, he was working as a warrant officer and that he had the parole warrant for the defendant and a “certificate of release to parole supervision” which had been signed by the defendant. The certificate of release to parole supervision set forth the conditions of the defendant‘s parole, which included the defendant‘s consent to the search and inspection of his person, residence, and property.
On the day of the arrest, the detective received a phone call from the defendant‘s girlfriend or ex-girlfriend, and he and his partner went to her address in Queens, where they believed they would find the defendant in his car. They had confirmed that a car, a 1995 Park Avenue, was registered to the defendant. When they arrived, they were unable to locate the defendant. Thereafter, as they were traveling to another location, the detective‘s partner received another phone call from the same caller, informing them that the defendant had returned to the address in Queens. According to the detective, who overheard the phone call, the caller, in a frantic tone, reported that the defendant was in the car with her son, and that her son had informed her by text message that there was a gun in the car.
The detectives returned to the address and saw the 1995 Park Avenue registered to the defendant. Although the car was unoccupied, its hood was warm to the touch. The detectives then entered an apartment at that address and arrested the defendant. According to the detective, thereafter, at the behest of the landlord of the premises, he moved the defendant‘s car, which was blocking the driveway. For safety reasons, the detective looked in the back seat area of the car before he began to move it. He saw an open backpack with the butt of a gun sticking out of a plastic bag. The detective removed the gun, which was with a box of ammunition, from the backpack.
The defendant was indicted on one count of criminal possession of a weapon in the second degree (
While a person on parole is not denied the Fourth Amendment right to be free from unreasonable searches and seizures, the status of a parolee is always relevant and may be critical in evaluating the reasonableness of a particular search or seizure. A search which would be unlawful if directed against an ordinary citizen may be proper if conducted against a parolee (see People v Huntley, 43 NY2d 175 [1977]). The special circumstances and close supervision that come with being a parolee must be considered when determining if a search is reasonable (see People v Fridell, 81 AD2d 869 [1981]).
Under the circumstances of this case, the detective‘s search of the car was “rationally and reasonably related to the performance of the parole officer‘s duty” by dint of the detective‘s parole responsibilities as a member of the Joint Apprehension Warrant Squad (People v Huntley, 43 NY2d at 181; see People v Van Buren, 198 AD2d 533, 534 [1993]). Here, no relevant distinction exists between the detective and the defendant‘s parole officer (see People v Van Buren, 198 AD2d at 534). At the time of the search, the detective was aware that the defendant had violated the terms of his parole, that as a result a warrant had been issued for the defendant‘s arrest (see People v Huntley, 43 NY2d at 182), and that the defendant had consented in writing to a search of his person and property. Additionally, the detective was aware that the car was registered to the defendant, the defendant had acknowledged that the car was his, and a known source had said that she had been told that the defendant had just been in the car with a gun (see People v Hale, 93 NY2d 454, 459-462 [1999]; People v Johnson, 94 AD3d 1529, 1531-1532 [2012]). Under these circumstances, the detective‘s search was justified (see People v Huntley, 43 NY2d 175 [1977]; People v Johnson, 94 AD3d at 1531-1532; People v Van Buren, 198 AD2d at 534). Accordingly, the Supreme Court properly denied that branch of the defendant‘s omnibus motion which was to suppress physical evidence.
In any event, even if this Court were to find that the defendant‘s statement that he did not have enough information about juror number four was a facially race-neutral explanation (see People v Payne, 88 NY2d at 183-184), the record developed in the trial court provided a sufficient basis to conclude that this explanation was pretextual (see People v Erskine, 90 AD3d at 675; People v Stewart, 238 AD2d 361, 362 [1997]).
The defendant‘s contention that he was deprived of his right to confront a witness by the elicitation of certain testimony from a certain detective is unpreserved for appellate review (see
The defendant also contends that certain allegedly improper comments made by the prosecutor during summation deprived him of a fair trial. The defendant‘s contentions are unpreserved for appellate review (see
The defendant‘s challenge to the legal sufficiency of the evidence supporting his conviction of unlawful possession of marijuana is unpreserved for appellate review (see
The defendant‘s remaining contentions are without merit.
Rivera, J.P., Miller, Maltese and Duffy, JJ., concur.