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

1474
KA 11-00795
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHRISTOPHER SMITH, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID PANEPINTO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered January 20, 2011. 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: Defendant appeals 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]). Defendant contends that the
consent to search his apartment obtained from the complainant involved
in an alleged domestic dispute with defendant was invalid and thus
that Supreme Court erred in refusing to suppress evidence obtained by
the police during the resulting search. We reject that contention.
The People met their burden of establishing that the police reasonably
believed that the complainant had the requisite authority to consent
to the search of defendant’s apartment (see People v Gonzalez, 88 NY2d
289, 295; People v Adams, 53 NY2d 1, 9-10, rearg denied 54 NY2d 832,
cert denied 454 US 854). The evidence at the suppression hearing
established that police officers responding to a report of a domestic
dispute at defendant’s apartment were met by the complainant, who
stated that she was defendant’s girlfriend, that she lived in the
apartment, and that she wanted to retrieve certain items of personal
property but was afraid that defendant would return to the apartment.
The complainant further stated that defendant kept a gun in the
apartment and had threatened to shoot her. The complainant permitted
the police officers to enter the apartment, directed an officer to the
location of the gun, and collected some belongings from a closet that
contained both men’s and women’s clothing. Thus, “the record
establishes that the searching officer[s] relied in good faith on the
apparent authority of [the complainant] to consent to the search, and
                                 -2-                          1474
                                                         KA 11-00795

the circumstances reasonably indicated that [she] had the requisite
authority to consent to the search” (People v Fontaine, 27 AD3d 1144,
1145, lv denied 6 NY3d 847; see People v Frankline, 87 AD3d 831, 833,
lv denied 19 NY3d 973; People v Littleton, 62 AD3d 1267, 1269, lv
denied 12 NY3d 926). Contrary to defendant’s contention, the
searching officers were “not required to make ‘some inquiry into the
actual state of authority’ ” of complainant to consent to a search
because they were not “ ‘faced with a situation which would cause a
reasonable person to question the consenting part[y’s] power or
control over the premises or property to be inspected’ ” (Fontaine, 27
AD3d at 1145, quoting Adams, 53 NY2d at 10). Finally, the sentence is
not unduly harsh or severe.




Entered:   December 28, 2012                   Frances E. Cafarell
                                               Clerk of the Court
