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

200
KA 15-00762
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEFFREY SAPP, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (JAMES M.
MARRA OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered January 5, 2015. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the second 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: On appeal from a judgment convicting him upon his
plea of guilty of criminal possession of a controlled substance in the
second degree (Penal Law § 220.18 [1]) and criminal possession of a
weapon in the second degree (§ 265.03 [3]), defendant contends that
Supreme Court erred in refusing to suppress evidence seized during a
search of his residence by parole officers. We reject that
contention.

     A parolee’s right to be free from unreasonable searches and
seizures is not violated if a parole officer’s search of the parolee’s
person or property “is rationally and reasonably related to the
performance of his [or her] duty as a parole officer” (People v
Huntley, 43 NY2d 175, 179; see People v Escalera, 121 AD3d 1519, 1520,
lv denied 24 NY3d 1083; People v Nappi, 83 AD3d 1592, 1593-1594, lv
denied 17 NY3d 820). A parole officer’s search is unlawful, however,
when the parole officer is “merely a conduit for doing what the police
could not do otherwise” (Escalera, 121 AD3d at 1520 [internal
quotation marks omitted]). Thus, “a parolee’s status ought not to be
exploited to allow a search which is designed solely to collect
contraband or evidence in aid of the prosecution of an independent
criminal investigation” (People v Candelaria, 63 AD2d 85, 90).

     Contrary to defendant’s contention, we conclude that the record
                                 -2-                           200
                                                         KA 15-00762

supports the court’s determination that the search 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 parole officer testified that he searched
defendant’s apartment 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 large quantity of cocaine in his” residence (Escalera, 121
AD3d at 1520). With respect to the credibility of the law enforcement
source, the parole officer’s testimony, along with the testimony of an
agent with the Federal Bureau of Investigation (FBI) and other parole
officers, established that the parole officer received credible
information, originating from a confidential informant of the FBI
agent who had proven to be reliable in the past, that defendant was in
possession of a large quantity of cocaine (see People v Robinson, 72
AD3d 1277, 1278, lv denied 15 NY3d 809). To the extent that defendant
challenges that testimony, we “afford deference to the court’s
determination that the . . . testimony [of the People’s witnesses] was
credible” (Johnson, 94 AD3d at 1532).

     We conclude that defendant’s further contention that the parole
officer was acting as an agent of law enforcement agencies is
undermined by the testimony of defendant’s parole officer and an FBI
agent that the law enforcement agency played no role in the decision
to search defendant’s residence. The FBI agent further testified that
the FBI was not investigating defendant on this matter, did not have
an open file on defendant, and did not relay the information in order
to have the parole officers search defendant’s home on their behalf
(see Escalera, 121 AD3d at 1520). Thus, we cannot conclude on this
record that the search was “designed solely to collect contraband or
evidence in aid of the prosecution of an independent criminal
investigation” (Candelaria, 63 AD2d at 90).

     Defendant concedes that his remaining contention regarding the
search of his residence is unpreserved for our review (see CPL 470.05
[2]), and we decline to exercise our power to review that contention
as a matter of discretion in the interest of justice (see CPL 470.15
[6] [a]).

     With respect to defendant’s remaining contentions, we note that,
“ ‘[b]y pleading guilty, defendant forfeited review of [Supreme]
Court’s Molineux and [Sandoval] ruling[s]’ ” (People v Pierce, 142
AD3d 1341, 1341; see People v Ingram, 128 AD3d 1404, 1404, lv denied
25 NY3d 1202).




Entered:   February 10, 2017                    Frances E. Cafarell
                                                Clerk of the Court
