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

1025
KA 09-00197
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JUSTIN JONES, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John R.
Schwartz, A.J.), rendered November 17, 2008. The judgment convicted
defendant, upon his plea of guilty, of attempted 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 him upon his
plea of guilty of attempted criminal possession of a weapon in the
second degree (Penal Law §§ 110.00, 265.03 [1] [b]), defendant
contends that County Court erred in refusing to suppress tangible
evidence seized from him by police officers as the fruit of an
unlawful entry. We reject that contention. The evidence at the
suppression hearing supports the court’s conclusion that the police
officers lawfully entered defendant’s house to execute a bench warrant
for defendant’s brother. The evidence established that the officers
reasonably believed that the brother, who resided at the same house,
was present when they entered (see CPL 120.80 [4]; 530.70 [2]; People
v Paige, 77 AD3d 1193, 1194, affd 16 NY3d 816). The record also
supports the court’s alternative conclusion that defendant’s sister
consented to the entry of the officers (see People v Barnhill, 34 AD3d
933, 934, lv denied 8 NY3d 843). We reject defendant’s further
contention that a police officer’s removal of the blanket that was
completely covering defendant, including his face, constituted an
unlawful search not supported by probable cause. The officer’s
conduct in removing the blanket to ascertain defendant’s identity and
to keep defendant’s hands in view was reasonable under the
circumstances (see People v Wheeler, 2 NY3d 370, 373-374). Having
removed the blanket, the officer was entitled to seize the handgun
that was then in plain view (see id.), and to search a hooded
sweatshirt located near defendant’s feet (see People v Smith, 59 NY2d
                             -2-                 1025
                                            KA 09-00197

454, 458).




Entered:   October 5, 2012         Frances E. Cafarell
                                   Clerk of the Court
