People v. Persaud

212 A.D.3d 654

179 N.Y.S.3d 617 (Mem)

The PEOPLE, etc., respondent,

v.Mark PERSAUD, appellant.

2018–00971

Ind. No. 1728/16

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

Submitted—December 12, 2022

January 11, 2023

Bruce R. Bekritsky, Carle Place, NY, for appellant.

Anne T. Donnelly, District Attorney, Mineola, NY (Tammy J. Smiley of counsel; Matthew C. Frankel on the brief), for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, LILLIAN WAN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Patricia Harrington, J.), rendered December 13, 2017, convicting him of burglary in the first degree, robbery in the first degree, assault in the second degree, and unlawful imprisonment in the first degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the Supreme Court properly denied that branch of his omnibus motion which was to suppress physical evidence. "A party who shares a common right of access to or control over property with a defendant may voluntarily consent to the search of the property" ( People v. Williams, 210 A.D.3d 913, 178 N.Y.S.3d 204, 2022 N.Y. Slip Op. 06502, *1 [2d Dept]). The evidence presented at the suppression hearing demonstrated that the defendant's friend consented to the police entry into and search of the motel room in which both she and the defendant were occupants (see People v. Arroyo, 125 A.D.3d 987, 987–988, 3 N.Y.S.3d 418 ; People v. Pierre, 300 A.D.2d 324, 324, 751 N.Y.S.2d 500 ). The defendant's friend had apparent authority to consent to the entry into and search of the motel room, and the police properly relied on that apparent authority (see People v. Arroyo, 125 A.D.3d at 987–988, 3 N.Y.S.3d 418 ; People v. Pierre, 300 A.D.2d at 324, 751 N.Y.S.2d 500 ).

The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent is unpreserved for appellate review, as he did not move to withdraw his plea or otherwise raise the issue before the Supreme Court (see People v. Fraser, 210 A.D.3d 1107, 177 N.Y.S.3d 491, 2022 N.Y. Slip Op. 06816 [2d Dept.] ; People v. Pray, 183 A.D.3d 842, 124 N.Y.S.3d 59 ). The "rare case" exception to the preservation requirement is not applicable here ( People v. Massey, 186 A.D.3d 1716, 1717, 129 N.Y.S.3d 818 ; see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Hernandez, 110 A.D.3d 919, 919, 972 N.Y.S.2d 697 ). "In any event, the court's colloquy with the defendant established that the plea was knowing, voluntary, and intelligent" ( People v. Massey, 186 A.D.3d at 1717, 129 N.Y.S.3d 818 ; People v. Istvan, 180 A.D.3d 804, 805, 117 N.Y.S.3d 694 ; see People v. Rodriguez, 152...