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

1039
KA 14-00755
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DARRYL NANCE, 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 (JULIE BENDER FISKE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered March 21, 2014. 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]). We reject defendant’s
contention that Supreme Court erred in refusing to suppress the
handgun seized by the police from defendant’s apartment on the ground
that his girlfriend’s consent to search was not voluntarily given.
“ ‘It is well established that the police need not procure a warrant
in order to conduct a lawful search when they have obtained the
voluntary consent of a party possessing the requisite authority or
control over the premises or property to be inspected’ ” (People v
Plumley, 111 AD3d 1418, 1419, lv denied 22 NY3d 1140). “Here, the
totality of the circumstances establishes that [defendant’s
girlfriend] ‘not only consented to the search, but also cooperated
with the [search by drawing the officers’ attention to the location
where the gun was recovered] to accomplish the search. Such conduct
signified the voluntary consent and willingness [of defendant’s
girlfriend] to cooperate with the police officers in their search’ ”
(People v McCray, 96 AD3d 1480, 1481, lv denied 19 NY3d 1104; see
People v Santiago, 41 AD3d 1172, 1173-1174, lv denied 9 NY3d 964).
Contrary to defendant’s contention, his girlfriend did not indicate
that she was under duress or compelled by law enforcement to consent
to the search.

     Also contrary to defendant’s contention, he was not improperly
                                 -2-                          1039
                                                         KA 14-00755

detained in order to prevent him from objecting to the search. The
officer’s prior knowledge of defendant’s dangerous propensities
provided him with a reasonable basis for detaining defendant, to
ensure officer safety (see People v Binion, 100 AD3d 1514, 1516, lv
denied 21 NY3d 911). Defendant failed to preserve for our review his
contention that the police lacked probable cause to arrest him (see
People v Williams, 118 AD3d 1429, 1429-1430, lv denied 24 NY3d 1222),
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 [3]
[c]).

     Finally, we reject defendant’s contention that the court erred in
refusing to suppress the showup identification as unduly suggestive.
“The showup procedure was reasonable under the circumstances because
it was conducted in ‘geographic and temporal proximity to the
crime,’ ” and it was not rendered unduly suggestive by the fact that
defendant was in handcuffs and in the presence of a police officer
during the procedure (People v Santiago, 83 AD3d 1471, 1471, lv denied
17 NY3d 800).




Entered:   October 9, 2015                     Frances E. Cafarell
                                               Clerk of the Court
