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

740
KA 15-00038
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BYRON BUZA, DEFENDANT-APPELLANT.


LAW OFFICES OF PETER K. SKIVINGTON PLLC, GENESEO (DANIEL R. MAGILL OF
COUNSEL), FOR DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Livingston County Court (Robert B.
Wiggins, J.), rendered January 6, 2015. The judgment convicted
defendant, after a nonjury trial, of criminal possession of marihuana
in the second degree and criminal possession of a controlled substance
in the seventh degree.

     It is hereby ORDERED that the judgment so appealed from is
reversed on the law and a new trial is granted.

     Memorandum: Defendant appeals from a judgment convicting him
following a nonjury trial of criminal possession of marihuana in the
second degree (Penal Law § 221.25) and criminal possession of a
controlled substance in the seventh degree (§ 220.03).

     Upon receiving information that a certain residence in the Town
of Springwater might be housing drugs, Sheriff’s deputies from the
Livingston County Sheriff’s Office proceeded to the residence to
investigate. No one was home when the deputies arrived, but an
investigator located defendant, whom the investigator believed to be
an occupant of the residence, working at a nearby ski resort.
Defendant accompanied the investigator to the residence where
defendant signed a form containing boilerplate language giving his
consent for “the above named officer(s) to conduct a complete search
of the premises and property.” That form further stated: “The above
said officer(s) further have my permission to take from my premises
and property, any letters, papers, materials or any other property or
things which they desire as evidence for criminal prosecution in the
case or cases under investigation.” In addition, the form listed the
deputies’ names, defendant’s name, and the address to be searched.
Before the deputies presented the completed form for defendant’s
signature, it was read to him.
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                                                          KA 15-00038

     After he signed the form, defendant led the deputies into the
residence through a door that, according to their trial testimony, may
or may not have been unlocked. During the ensuing search, defendant
told the deputies that one of the three bedrooms of the residence
“belonged to, or was rented to” another person, whom the deputies
believed to be defendant’s roommate. After speaking with that person
by telephone, an investigator “obtain[ed] a search warrant for the
residence and [that other person]’s room.” A search of the residence
uncovered approximately six pounds of marihuana and an undetermined
quantity of mushrooms containing psilocin, a controlled substance.
The majority of the marihuana and mushrooms were found in plastic
containers stored in a closet adjacent to the living room.

      Contrary to defendant’s contention, we conclude that the verdict
is based on legally sufficient evidence (see generally People v
Bleakley, 69 NY2d 490, 495). In addition, viewing the evidence in
light of the elements of the crimes in this nonjury trial (see People
v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not
against the weight of the evidence (see generally Bleakley, 69 NY2d at
495).

     We nonetheless agree with defendant’s further contention that
County Court erred in failing to preclude evidence of an admission
that he allegedly made, but for which the People did not provide a CPL
710.30 notice. The People served on defendant a CPL 710.30 notice of
their intent to offer defendant’s admissions as evidence at trial and
attached a police report to the notice. The police report referenced
defendant’s statement to the deputies, during the search, that one of
the bedrooms belonged to another person. At trial, however, the court
permitted an investigator to testify that defendant “explained where
his [own] room was,” referring to another of the bedrooms. Inasmuch
as the CPL 710.30 notice did not cover that statement, the court’s
ruling on that point was error (see CPL 710.30 [1]; see also People v
Lopez, 84 NY2d 425, 428; People v Pallagi, 91 AD3d 1266, 1268). That
error permitted the court to conclude that defendant was an occupant
of the residence and, consequently, to find that defendant had
constructive possession of the drugs found therein (see People v
Slade, 133 AD3d 1203, 1205-1207, lv denied 26 NY3d 1150).

     Contrary to the People’s contention, defendant’s statement was
not pedigree information exempt from the CPL 710.30 notice
requirement. Generally, an inculpatory statement of a defendant
concerning his or her address is exempt from the notice requirement if
elicited through routine administrative questioning, as long as the
questioning is not designed to elicit an incriminating response (see
People v Velazquez, 33 AD3d 352, 353, lv denied 7 NY3d 929; People v
Baker, 32 AD3d 245, 250, lv denied 7 NY3d 865). Here, the People
failed to establish that defendant’s statement concerning his
residency was elicited through such routine administrative
questioning. In any event, we conclude that any question that may
have prompted defendant’s statement was likely, in the context of the
police search in progress, “to elicit [an] incriminating admission[]”
with respect to the possessory crimes with which defendant was charged
(People v Rodney, 85 NY2d 289, 293; see Slade, 133 AD3d at 1206;
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                                                            KA 15-00038

Velazquez, 33 AD3d at 354).

     We disagree with our dissenting colleagues that the language in
the consent to search form contains “specific admissions regarding
[defendant’s] dominion and control of the residence.” To the
contrary, the deputies prepared that form themselves by inserting
defendant’s name, as well as the address of the place to be searched,
into a form that already contained boilerplate language—what one
testifying Sheriff’s deputy called “our permission to search
document.” In our view, that consent alone was not overwhelming
evidence that defendant exercised dominion and control over the
premises (see generally People v Siplin, 29 NY2d 841, 842). Moreover,
defendant’s conduct during the course of the investigation was equally
consistent with a person who was merely familiar with the subject
residence, as it was with an occupant thereof. Indeed, there was no
evidence that the investigators observed a name on a mailbox, keys in
defendant’s possession, or framed items displaying his name or image
(cf. People v Davis, 101 AD3d 1778, 1779-1780, lv denied 20 NY3d 1060;
People v Edwards, 39 AD3d 1078, 1079-1080), nor was there evidence
that the investigators recovered any property or papers from the
residence, aside from one Christmas gift, that bore defendant’s name
or other indicia of ownership, such as photo identification, a
prescription, or utility bills or other mail (cf. People v Holland,
126 AD3d 1514, 1515, lv denied 25 NY3d 1165; People v Patterson, 13
AD3d 1138, 1139, lv denied 4 NY3d 801). Given the above, we are
compelled to conclude that the investigator’s testimony with respect
to defendant’s statement of residency was a pivotal component of the
People’s case in establishing defendant’s residency at the premises
and, thus, defendant’s constructive possession of the drugs. Unlike
our dissenting colleagues, we therefore cannot conclude that the
court’s error in admitting defendant’s statement is harmless (see
Slade, 133 AD3d at 1206-1207).

     All concur except PERADOTTO, J.P., and SCUDDER, J., who dissent and
vote to affirm in the following memorandum: Although we agree with
the majority that County Court erred in failing to preclude the
testimony regarding defendant’s statement to the police explaining
where his own room was located in the residence because the People’s
CPL 710.30 notice did not include that statement, we do not agree on
this record that the error requires reversal of the judgment of
conviction and a new trial. We respectfully dissent because, in our
view, the error was harmless, and therefore the judgment should be
affirmed.

     The record does not support the majority’s conclusion that
defendant’s statement to the police about the location of his room was
the linchpin of the People’s case establishing that defendant was an
occupant of the residence and thus had constructive possession of the
drugs found therein. Here, the evidence established that, after two
investigators responded to the residence to investigate and found that
no one was home, one of the investigators located defendant at a
nearby ski resort, they had a brief conversation there, and defendant
then agreed to come back to the residence. Defendant drove his ATV
and was followed by the investigator in his patrol vehicle. The two
                                 -4-                           740
                                                          KA 15-00038

investigators then asked defendant whether he would provide them with
permission to look inside the residence. After some conversation and
contemplation, defendant verbally agreed.

     Contrary to the majority’s conclusion, defendant did not merely
provide a generic consent to search without more; rather, he signed a
detailed written consent form—the knowing and voluntary execution of
which he has never challenged—wherein he made specific admissions
regarding his dominion and control over the residence. On the consent
form, which contained defendant’s name and date of birth as well as
the address of the residence, defendant stated that he was informed by
the investigators of his “constitutional right not to have a search
made of the premises and property owned by [him] and/or under [his]
care, custody and control, without a search warrant.” Defendant
further stated that he willingly gave his permission for the
investigators to conduct a complete search of the premises and
property, and “to take from [his] premises and property” any items
desired as evidence for a criminal prosecution. Defendant thus
acknowledged through the duly executed and detailed consent form that
the residence was under his dominion and control.

     In addition to returning to the residence in the lead and
thereafter providing his consent to search the residence over which he
had control, defendant’s further actions and the evidence discovered
by the police were also entirely consistent with defendant’s occupancy
of the residence. After consenting to the search, defendant led the
investigators through the door of the residence. Although the
investigators may have initially thought that they had consent to
search the entire residence, it was subsequently established that one
of the rooms “belonged to, or was rented to” another person that one
of the investigators characterized as defendant’s “roommate.”
Defendant then contacted that person by cell phone and, after speaking
with him, that same investigator left the residence and obtained a
search warrant for the entire residence, including the other person’s
room. Defendant’s consent thus had extended only to the common areas
of the residence. As noted by the majority, most of the marihuana and
mushrooms recovered during the search were found in plastic containers
stored in a closet adjacent to the living room. In part of the living
room, the police also found a tin containing mushrooms and affixed
with a handwritten note bearing the message, “Byron[,] Merry Xmas!”

     Based on the foregoing, we conclude that the error in admitting
defendant’s unnoticed statement is harmless. Considering the above-
mentioned evidence in totality without reference to the error and,
particularly, though not exclusively, defendant’s admissions in the
consent form that he maintained custody and control of the residence,
we conclude that the evidence of defendant’s constructive possession
of the subject drugs is overwhelming (see generally People v Fineout,
139 AD3d 1394, 1395-1396). There is no significant probability that
the court would have acquitted defendant in the absence of the
testimony regarding his statement to the investigators explaining the
location of his room in the residence (see generally People v Arafet,
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                                                          KA 15-00038

13 NY3d 460, 467; People v Crimmins, 36 NY2d 230, 241-242).




Entered:   November 10, 2016                   Frances E. Cafarell
                                               Clerk of the Court
