        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1180
KA 12-00390
PRESENT: SMITH, J.P., CENTRA, FAHEY, CARNI, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL PLUMLEY, DEFENDANT-APPELLANT.


ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR DEFENDANT-APPELLANT.

MICHAEL PLUMLEY, DEFENDANT-APPELLANT PRO SE.

DAVID W. FOLEY, DISTRICT ATTORNEY, MAYVILLE (LAURIE M. BECKERINK OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Chautauqua County Court (John T.
Ward, J.), rendered December 19, 2011. The judgment convicted
defendant, upon his plea of guilty, of robbery in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of robbery in the first degree (Penal Law §
160.15 [1]). We reject defendant’s contention that County Court erred
in refusing to suppress physical evidence seized by the police from
the bedroom and an adjoining room in an apartment in which defendant
had stayed. “It is well established that the police need not procure
a warrant in order to conduct a lawful search when they have obtained
the voluntary consent of a party possessing the requisite authority or
control over the premises or property to be inspected” (People v
Adams, 53 NY2d 1, 8, rearg denied 54 NY2d 832, cert denied 454 US 854;
see People v Cosme, 48 NY2d 286, 290). Thus, “ ‘where two or more
individuals share a common right of access to or control of the
property to be searched, any one of them has the authority to consent
to a warrantless search in the absence of the others’ ” (People v
Rivera, 83 AD3d 1370, 1372, lv denied 17 NY3d 904, quoting Cosme, 48
NY2d at 290).

     Here, the People met their burden of establishing that the police
reasonably believed that the lessee of the subject apartment had the
authority to consent to the search of the apartment, including the
areas of the apartment from which the physical evidence was seized
(see People v Smith, 101 AD3d 1794, 1794, lv denied 20 NY3d 1104; see
also Adams, 53 NY2d at 9-10; see generally People v Berrios, 28 NY2d
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                                                         KA 12-00390

361, 367). Indeed, the police searched the apartment pursuant to a
waiver that was voluntarily signed by the lessee of that premises, and
the bedroom and an adjoining room from which the physical evidence was
seized were areas that were accessible to everyone in the apartment.
Specifically, the evidence establishes that there was no door to the
bedroom, and that the adjacent room at issue was connected to the
bedroom by “an open doorway.”

     Defendant appears to contend that we should also consider whether
the police had consent to search the bags found within the rooms at
issue. Although defendant relies on case law containing the well-
settled principle that general consent granted by someone other than a
defendant to search a premises does not validate the search of
something used exclusively by the defendant for personal effects,
i.e., a drawer, bag or similar item (see People v Holmes, 89 AD3d
1491, 1492; see also People v Gonzalez, 88 NY2d 289, 294-295), that
reliance is misplaced inasmuch as there is no evidence that the police
seized anything from the apartment that was stored inside of a bag.
Although the police officer who testified on behalf of the People at
the suppression hearing acknowledged that there were bags in the area
that was searched, he provided no indication that such bags were
opened or that evidence was taken from those bags. We thus conclude
that the People met “the burden of going forward to show the legality
of the police conduct in the first instance” (Berrios, 28 NY2d at 367
[internal quotation marks and emphasis omitted]), and that defendant
otherwise failed to meet his “ultimate burden of proving that the
[seized] evidence should not be used against him” (id.).

     We also reject defendant’s contention that the court erred in
refusing to suppress evidence of the victim’s identification of him.
Contrary to defendant’s contention, “the subjects depicted in the
photo array are sufficiently similar in appearance so that the
viewer’s attention is not drawn to any one photograph in such a way as
to indicate that the police were urging a particular selection”
(People v Quinones, 5 AD3d 1093, 1093, lv denied 3 NY3d 646; see
People v Page, 105 AD3d 1380, 1382). The fact that defendant is the
only person in the photo array wearing a red shirt is of no moment
inasmuch as defendant was not the only person shown wearing a dark-
colored shirt, defendant was not shown in a shirt similar to the white
thermal shirt that he was wearing for a prior showup identification,
and shirt color was not a part of the description of the assailant
that the victim provided to the police (see People v Bell, 19 AD3d
1074, 1075, lv denied 5 NY3d 803, 850; People v Porter, 2 AD3d 1429,
1430, lv denied 2 NY3d 744). Contrary to defendant’s further
contention, the fact that the severely injured victim identified
defendant in a photo array approximately five days after the victim
failed to identify defendant in a showup procedure that was conducted
at the hospital where the victim was undergoing treatment is of no
consequence here. “ ‘[M]ultiple pretrial identification procedures
are not inherently suggestive’ ” (People v Morgan, 96 AD3d 1418, 1419,
lv denied 20 NY3d 987; see People v Peterkin, 81 AD3d 1358, 1359, lv
denied 17 NY3d 799) and, in this case, the police officer who
testified on behalf of the People indicated that the victim did not
remember anything about the showup procedure at the time the victim
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                                                         KA 12-00390

identified defendant in the photo array (cf. People v Thompson, 17
AD3d 138, 139, lv denied 5 NY3d 795; see generally People v Young, 261
AD2d 109, 110, lv denied 93 NY2d 1007). Even assuming, arguendo, that
the victim remembered the showup identification procedure, we note
that the shirt defendant wore during that procedure was a different
color than the shirt defendant wore in the picture used in the photo
array (cf. generally People v Munoz, 223 AD2d 370, 370, lv denied 88
NY2d 990), and there is nothing in the record establishing that the
photo array was tainted by the showup procedure (cf. People v
Anderson, 94 AD3d 1010, 1011, lv denied 19 NY3d 956, reconsideration
denied 19 NY3d 1101). We have reviewed defendant’s remaining
contention and conclude that it is without merit.




Entered:   November 15, 2013                   Frances E. Cafarell
                                               Clerk of the Court
