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

1332
KA 12-02286
PRESENT: CENTRA, J.P., FAHEY, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARK A. ROUNDS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, HARTER SECREST & EMERY
LLP (MAURA MCGUIRE OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (Alex
R. Renzi, J.), rendered June 20, 2012. 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 him upon a plea
of guilty of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]), defendant contends that the weapon seized
from his residence was the product of an illegal search and that
Supreme Court therefore erred in refusing to suppress it. We reject
that contention. The search was conducted by parole officers “in
furtherance of parole purposes and related to [their] dut[ies] as . .
. parole officer[s]” (People v Johnson, 63 NY2d 888, 890 [internal
quotation marks omitted], rearg denied 64 NY2d 647; see People v
Davis, 101 AD3d 1778, 1779, lv denied 20 NY3d 1060; People v Scott, 93
AD3d 1193, 1194, lv denied 19 NY3d 967, reconsideration denied 19 NY3d
1001). The parole officers had a reasonable basis to believe that a
gun would be located in the residence based on the suspicious nature
of defendant’s statement that he had been shot in the foot by an
unknown assailant at his residence, and based on the fact that no
evidence of a third-party shooter was uncovered during the police
investigation (see People v Nappi, 83 AD3d 1592, 1594, lv denied 17
NY3d 820; see generally People v Huntley, 43 NY2d 175, 181). Contrary
to defendant’s contention, the fact that the parole officers received
assistance from a police officer at the scene did not render the
search a police operation requiring a search warrant (see Davis, 101
AD3d at 1779; Nappi, 83 AD3d at 1594; People v Johnson, 54 AD3d 969,
970).
                                 -2-                          1332
                                                         KA 12-02286

     We reject defendant’s further contention that the court erred in
failing to suppress the statements he made to a police officer at the
hospital, prior to receiving Miranda warnings. Under the
circumstances, we conclude that defendant was not in custody when he
made those statements (see People v Drouin, 115 AD3d 1153, 1155-1156,
lv denied 23 NY3d 1019; see generally People v Forbes, 182 AD2d 829,
829-830, lv denied 80 NY2d 895). We therefore reject defendant’s
further contention that the post-Miranda statements should be
suppressed as fruit of the unlawful pre-Miranda questioning (see
People v Adelman, 1 AD3d 1029, 1030).




Entered:   January 2, 2015                     Frances E. Cafarell
                                               Clerk of the Court
