People v. Sherman

177 A.D.3d 777

110 N.Y.S.3d 314 (Mem)

The PEOPLE, etc., Respondent,

v.Scott SHERMAN, Appellant.

2015–04668

Ind.No. 167/12

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

Argued—September 13, 2019

November 13, 2019

Mark E. Goidell, Garden City, NY, for appellant.

Madeline Singas, District Attorney, Mineola, N.Y. (Daniel Bresnahan and Barbara Kornblau of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., SHERI S. ROMAN, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Nassau County (John L. Kase, J., at plea; Christopher G. Quinn, J., at sentence), rendered May 29, 2014, convicting him of 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 pursuant to a stipulation in lieu of motions (John L. Kase, J.), of the suppression of physical evidence.

ORDERED that the judgment is affirmed.

The defendant was charged with kidnapping in the second degree and unlawful imprisonment in the first degree, among other crimes, arising out of an incident in which he allegedly committed various violent acts against his wife inside the residence they shared. After a hearing pursuant to a stipulation in lieu of motions, the County Court denied suppression of certain physical evidence recovered from the residence during a warrantless search by the police. Thereafter, the defendant pleaded guilty to unlawful imprisonment in the first degree. On appeal, the defendant argues, inter alia, that the court erred in denying suppression of physical evidence, and that his plea of guilty was not knowing, voluntary, and intelligent.

We agree with the County Court's determination to deny suppression of the physical evidence recovered by the police during the warrantless search of his house. "[T]he police may lawfully conduct a warrantless search when they have obtained the voluntary consent of a party who possesses the requisite degree of authority and control over the premises or personal property in question" ( People v. Cosme, 48 N.Y.2d 286, 290, 422 N.Y.S.2d 652, 397 N.E.2d 1319 ; see People v. Xochimitl, 147 A.D.3d 793, 794, 47 N.Y.S.3d 339, affd 32 N.Y.3d 1026, 87 N.Y.S.3d 132, 112 N.E.3d 309 ; People v. Watson, 101 A.D.3d 913, 914, 955 N.Y.S.2d 411 ). Here, the People met their burden of establishing that consent to the warrantless search was freely and voluntarily given by the defendant's wife, a person who possessed the requisite degree of authority and control over the premises, at a time when the defendant was no longer present at the premises (see People v. Clark, 167 A.D.3d 1035, 1036, 88 N.Y.S.3d 894 ; cf. People v. Grillo, 128 A.D.3d 1103, 1105, 7 N.Y.S.3d 726 ). Furthermore, there was no evidence that the police removed the defendant for the purpose of avoiding his potential objection to the search (see People v. Watson, 101 A.D.3d at 914, 955 N.Y.S.2d 411 ; United States v. Lopez, 547 F.3d 397, 400 [2d Cir. 2008] ).

The defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently entered is unpreserved for appellate review, since he did not move to withdraw the plea (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Harden, 175 A.D.3d 613, 614, 104 N.Y.S.3d 898 ; People v. Narbonne, 131 A.D.3d 626, 627, 14 N.Y.S.3d 917 ). Moreover, the exception to the preservation requirement does not apply here, since the plea allocution did not cast significant doubt upon the defendant's guilt, negate an essential element of the crime, or call into question the voluntariness of his plea (see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Peralta, 171 A.D.3d 948, ...