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

441
KA 13-00646
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HOWARD E. JOHNSON, JR., DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Vincent M.
Dinolfo, J.), rendered January 31, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree and criminal possession of a weapon in the third
degree.

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

     Memorandum: On appeal from a judgment convicting him, upon his
plea of guilty, of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]) and criminal possession of a weapon in
the third degree (§ 265.02 [1]), defendant contends that County Court
erred in refusing to suppress, as the product of an unlawful search
and seizure, the gun found by a team of parole warrant enforcement
officers on his person and his statements to the officers. According
to defendant, his rights under Payton v New York (445 US 573) were
violated when, about four months after he absconded from parole
supervision, the officers entered his house with only a parole
violation warrant, but without a judicial arrest or search warrant.
We reject that contention. “Under the Federal Constitution, it is
clear that a parolee or a probationer may be arrested in his [or her]
home without a judicial warrant” (People v Hernandez, 218 AD2d 167,
171, lv denied 88 NY2d 936, 1068; see generally Samson v California,
547 US 843, 850-857). A parole violation warrant by itself justifies
the entry of the residence for the purposes of locating and arresting
the defendant therein (see Cook v O’Neill, 803 F3d 296, 300), provided
that, as here, the officers “reasonably believe[d] the defendant to be
present” in the premises (CPL 120.80 [4]). In any event, the conduct
of the officers in searching the premises for defendant and, following
his arrest, in searching his pockets “was rationally and reasonably
related to the performance of the parole officer[s’] duty” (People v
                                 -2-                           441
                                                         KA 13-00646

Huntley, 43 NY2d 175, 181), and thus the officers’ conduct would have
been permissible even in the absence of a parole violation warrant
(see People v June, 128 AD3d 1353, 1354, lv denied 26 NY3d 931; People
v Nappi, 83 AD3d 1592, 1593-1594, lv denied 17 NY3d 820).




Entered:   June 10, 2016                       Frances E. Cafarell
                                               Clerk of the Court
