ESCALERA, ANGEL R., PEOPLE v ( 2014 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
893
KA 12-01719
PRESENT: SMITH, J.P., FAHEY, LINDLEY, WHALEN, AND DEJOSEPH, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ANGEL R. ESCALERA, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ALICIA M. LILLEY OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered September 12, 2012. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the first 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 first degree (Penal Law § 220.21 [1]), defendant contends that
Supreme Court erred in denying his motion to suppress the cocaine
found by his parole officer during a search of his apartment.
According to defendant, the warrantless search of his apartment was
unlawful because the parole officer was acting as an agent of the
United States Drug Enforcement Agency (DEA), which lacked sufficient
evidence to obtain a warrant. Defendant failed to preserve his
contention for our review, inasmuch as he contended at the suppression
hearing that his parole officer, in conducting the search in question,
was acting as a de facto agent of the local police while, on appeal,
he contends that the parole officer was acting on behalf of the DEA
(see CPL 470.05 [2]). In any event, we reject defendant’s present
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 duty as a parole officer” (People v Huntley, 43
NY2d 175, 179; see 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” (People v Mackie, 77 AD2d 778, 779). Stated
-2- 893
KA 12-01719
differently, “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).
Here, defendant’s contention that the parole officer was acting
as an agent of the DEA is undermined by the uncontroverted testimony
of the parole officer that she was informed by a DEA agent prior to
the search that the federal prosecutor “will most likely not want to
get involved” in the case if an arrest were made, and by the fact that
no federal charges were ever lodged against defendant. Rather, the
parole officer testified that she conducted the search because she
received credible information from law enforcement sources that
defendant possessed a large quantity of cocaine in his apartment,
which violated his parole conditions, and the court found her
testimony in that regard to be credible. We thus conclude that the
court properly determined that the search was rationally and
reasonably related to the performance of the parole officer’s duties,
and that suppression was therefore not warranted (see People v Davis,
101 AD3d 1778, 1779, lv denied 20 NY3d 1060; People v Johnson, 94 AD3d
1529, 1531-1532, lv denied 19 NY3d 974).
By pleading guilty, defendant forfeited his contention that he
was deprived of his right to testify before the grand jury (see People
v Ross, 113 AD3d 877; People v Straight, 106 AD3d 1190, 1191).
Defendant, who pleaded guilty after three days of trial, correctly
concedes that he failed to preserve for our review his further
contention that he was deprived of a fair trial by prosecutorial
misconduct because he failed to move to withdraw the plea or to vacate
the judgment of conviction on that ground (see People v Lopez, 71 NY2d
662, 665; People v McKeon, 78 AD3d 1617, 1618, lv denied 16 NY3d 799).
In any event, that contention is also forfeited by his guilty plea
(see generally People v Parris, 4 NY3d 41, 49, rearg denied 4 NY3d
847).
We have reviewed defendant’s remaining contentions and conclude
that, even assuming, arguendo, that they survive his guilty plea, they
lack merit.
Entered: October 3, 2014 Frances E. Cafarell
Clerk of the Court