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

730
KA 08-01434
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GABRIEL TAYLOR, DEFENDANT-APPELLANT.


DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.

GABRIEL TAYLOR, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY RAE SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered May 23, 2008. The judgment convicted
defendant, upon a jury verdict, of robbery in the first degree (two
counts), attempted murder in the first degree (three counts), assault
in the first degree and criminal possession of a weapon in the second
degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of, inter alia, two counts of robbery in the
first degree (Penal Law § 160.15 [1], [2]) and three counts of
attempted murder in the first degree (§§ 110.00, 125.27 [1] [a] [vii];
[b]). We reject defendant’s contention that Supreme Court erred in
refusing to suppress tangible evidence seized from his residence and
any statements that he allegedly made during the search of that
residence as the fruit of an unlawful search. In seeking suppression,
defendant contended that police officers “illegally and improperly
bypassed the requirement of obtaining a valid search warrant by
masking the visit of the defendant’s residence and search of his room
as a parole visit.” We conclude, however, that the search was
“rationally and reasonably related to the performance of [the parole
officer’s] duty as a parole officer” (People v Huntley, 43 NY2d 175,
179; see People v Nappi, 83 AD3d 1592, 1593-1594, lv denied 17 NY3d
820; People v Van Buren, 198 AD2d 533, 534, lv denied 83 NY2d 811).

     While investigating the robbery, police officers began to suspect
that defendant, a parolee, was involved. At approximately 11:00 p.m.
on the night of the robbery, the police officers contacted the parole
officer whose duty it was to locate parolees, in order to obtain
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                                                         KA 08-01434

defendant’s most recent address. The police officers did not inform
the parole officer of their reason for needing that information.
After obtaining the requested information for the police officers, the
parole officer informed the police officers that he was going to go to
the residence “to verify if [defendant] was home” because defendant
had a curfew of 10:00 p.m. Inasmuch as it was the policy of the
Division of Parole to have at least two officers present for any home
visit made after 10:00 p.m., the parole officer asked the police
officers if they would accompany him. We thus conclude that the
parole officer was “pursuing parole-related objectives” in going to
defendant’s residence (People v Peterson, 6 AD3d 363, 364, lv denied 3
NY3d 710; see People v Vann, 92 AD3d 702, 702-703, lv denied ___ NY3d
___ [May 4, 2012]; People v Felder, 272 AD2d 884, lv denied 95 NY2d
905; People v Smith, 234 AD2d 1002, lv denied 89 NY2d 988; cf. People
v Mackie, 77 AD2d 778, 779).

     When the parole officer and police officers arrived at
defendant’s residence, they were informed by a woman who identified
herself as defendant’s aunt that defendant was not home. At that
point it was apparent that defendant was in violation of his parole,
and “the parole officer’s conduct in searching the [residence] for a
possible explanation of [defendant’s] otherwise unexplained failure to
[be present] was permissible” (Huntley, 43 NY2d at 182). While the
parole officer and police officers were present at the residence, a
person who identified himself as defendant telephoned the residence
and was overheard making certain statements. Inasmuch as the search
of the residence was lawful, there is no basis to suppress those
statements.

     We agree with defendant, however, that the court erred in
admitting in evidence an inoperable handgun that was found during that
search. It is undisputed that the gun, which was seized from the
living room couch upon which defendant slept, was not the same gun
that was used in the robbery. Although we concluded herein that the
tangible evidence seized from defendant’s residence, which evidence
included the gun, was not subject to suppression as the fruit of an
unlawful search, we nevertheless conclude that the gun was not
admissible under any Molineux exception. While the People contend
that the gun was admissible to explain the statements made by
defendant on the phone to his aunt, we reject that contention and
conclude that the gun could not “logically be linked to [any] specific
material issue in the case” (People v Hudy, 73 NY2d 40, 54). We thus
conclude that the probative force of that evidence did not outweigh
its potential for prejudice (see People v Pittman, 49 AD3d 1166, 1167;
People v Carter, 31 AD3d 1167, 1168; see generally People v
Ventimiglia, 52 NY2d 350, 359-360). We conclude, however, that the
error is harmless. The evidence of defendant’s guilt is overwhelming,
and “there [is] no significant probability that the jury would have
acquitted [defendant] had the proscribed evidence not been introduced”
(People v Kello, 96 NY2d 740, 744; see People v Arafet, 13 NY3d 460,
466-467; see generally People v Crimmins, 36 NY2d 230, 241-242).
Defendant was positively identified by an eyewitness to the incident.
Defendant and the eyewitness were acquaintances, and the eyewitness
had conversed with defendant outside the convenience store just
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                                                         KA 08-01434

minutes before the robbery. Although the eyewitness was an “[e]x
crack head” who had a criminal history, his version of events was
corroborated by the surveillance video from the convenience store
where the robbery occurred, and by three employees of the store and a
security guard from a neighboring business. In addition, defendant
made numerous incriminating statements when he was ultimately
arrested, one of which included details about the crime that only the
perpetrator or an eyewitness to the crime could have known. We
further conclude that, based on the nature of the crimes and
defendant’s criminal history, the sentence is not unduly harsh or
severe.

     Defendant further contends in his pro se supplemental brief that
the court erred in denying his CPL 330.30 motion to set aside the
verdict. We reject that contention. Defendant based his motion in
part on the fact that the court improperly permitted the jury to view
a CPL 710.30 document that had not been admitted in evidence. After
learning of the error, the court alerted defense counsel to the issue,
noting that “no harm” had resulted from the error because the contents
of the document were duplicative of testimony offered during the
course of the trial. Defense counsel raised no objection to the
manner in which the court handled the error, and thus the court had no
authority to grant the motion to set aside the verdict based on a
contention raised for the first time in the motion (see CPL 330.30
[1]; People v Benton, 78 AD3d 1545, 1546, lv denied 16 NY3d 828; see
generally People v Carter, 63 NY2d 530, 536). Finally, we reject
defendant’s contention that the court should have granted his CPL
330.30 motion insofar as it alleged that defense counsel was
ineffective for failing to seek a mistrial based on the error relating
to the CPL 710.30 document. “It is well settled that defense counsel
cannot be deemed ineffective for failing to ‘make a motion or argument
that has little or no chance of success’ ” (People v Noguel, 93 AD3d
1319, 1320, quoting People v Stultz, 2 NY3d 277, 287, rearg denied 3
NY3d 702). We agree with the court that the jury’s inadvertent
viewing of the CPL 710.30 document was harmless inasmuch as it was
duplicative of testimony admitted at trial and that, in any event,
defendant failed to demonstrate the absence of strategic reasons for
defense counsel’s failure to move for a mistrial (see People v Denis,
91 AD3d 1301, 1302).




Entered:   July 6, 2012                         Frances E. Cafarell
                                                Clerk of the Court
