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

494
KA 14-01973
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHRISTOPHER WHEELER, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DAVID A.
HERATY OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered March 10, 2014. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree.

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

     Memorandum: On appeal from a judgment convicting defendant upon
his plea of guilty of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]), defendant contends that Supreme Court
erred in refusing to suppress evidence located during a compliance
check by his parole officer, as well as statements that he made to the
parole officer and to the police after his arrest. We reject that
contention.

     “[G]reat deference should be given to the determination of the
suppression court, which had the opportunity to observe the demeanor
of the witnesses and to assess their credibility, and its findings
should not be disturbed unless clearly erroneous” (People v Layou, 134
AD3d 1510, 1511, lv denied 27 NY3d 1070, reconsideration denied 28
NY3d 932; see People v Daniels, 147 AD3d 1392, 1392-1393; People v
Hogan, 136 AD3d 1399, 1400, lv denied 27 NY3d 1070). Contrary to
defendant’s contention, nothing about the parole officer’s testimony
is “ ‘unbelievable as a matter of law, manifestly untrue, physically
impossible, contrary to experience, or self-contradictory’ ” (Layou,
134 AD3d at 1511).

     The record supports the court’s determination that the search of
defendant’s residence was “ ‘rationally and reasonably related to the
performance of the parole officer’s duty’ and was therefore lawful”
(People v Johnson, 94 AD3d 1529, 1532, lv denied 19 NY3d 974). The
                                 -2-                           494
                                                         KA 14-01973

parole officer testified that he searched defendant’s residence for
the purpose of determining if defendant was in violation of the
conditions of his parole because he “received credible information
from law enforcement sources that defendant possessed a [gun] in his”
residence (People v Escalera, 121 AD3d 1519, 1520, lv denied 24 NY3d
1083; see People v Nappi, 83 AD3d 1592, 1593-1594, lv denied 17 NY3d
820). The assistance of the police at defendant’s residence did not
render the search a police operation (see People v Johnson, 54 AD3d
969, 970).

     Defendant concedes that he improperly moved pursuant to CPL
330.30 (1) to set aside the verdict in this plea case, but he contends
that the court was required to convert the motion to one under either
CPL article 440 or CPL 220.60 and to grant it. We reject that
contention. Even assuming, arguendo, that the court had any such
obligation, we conclude that a motion under CPL article 440 would have
been premature (see People v Spirles, 294 AD2d 810, 811, lv denied 98
NY2d 713, reconsideration denied 99 NY2d 540). Furthermore, the
motion, even if addressed under CPL 220.60, lacks merit because the
issues raised therein would not be appropriately argued in the context
of a motion to withdraw a plea of guilty (see People v Anderson, 63
AD3d 1617, 1618, lv denied 13 NY3d 858). Finally, to the extent that
defendant’s contention that his counsel was ineffective in failing to
move to withdraw the guilty plea survives his plea (see People v
Dixon, 147 AD3d 1518, 1519), we conclude that his contention lacks
merit (see generally People v Ford, 86 NY2d 397, 404).




Entered:   April 28, 2017                       Frances E. Cafarell
                                                Clerk of the Court
