DAVIS, DASHAWN, PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1448
KA 10-01825
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DASHAWN DAVIS, 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 (RENE JUAREZ OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered August 5, 2010. The judgment convicted
defendant, after a nonjury trial, of criminal possession of a
controlled substance in the third degree (two counts), criminal
possession of a controlled substance in the fourth degree, criminal
possession of a controlled substance in the seventh degree, criminal
possession of a weapon in the second degree, criminally using drug
paraphernalia in the second degree, criminal possession of marihuana
in the fourth degree, unlawful possession of marihuana, and unlawfully
tinted windows.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of, inter alia, criminal possession of a
controlled substance (CPCS) in the third degree (Penal Law § 220.16
[12]), CPCS in the fourth degree (§ 220.09 [1]), CPCS in the seventh
degree (§ 220.03), criminal possession of a weapon in the second
degree (§ 265.03 [3]), criminally using drug paraphernalia in the
second degree (§ 220.50 [3]), criminal possession of marihuana in the
fourth degree (§ 221.15), and unlawful possession of marihuana (§
221.05). We reject defendant’s contention that Supreme Court erred in
refusing to suppress evidence that was seized from his apartment by
parole officers and provided to police officers. It is well settled
that a “parole officer may conduct a war[r]antless search where ‘the
conduct of the parole officer was rationally and reasonably related to
the performance of the parole officer’s duty’ ” (People v Nappi, 83
AD3d 1592, 1593, lv denied 17 NY3d 820, quoting People v Huntley, 43
NY2d 175, 181; see People v Scott, 93 AD3d 1193, 1194, lv denied 19
NY3d 967, reconsideration denied 19 NY3d 1001). On the date of
defendant’s arrest, he was a parolee. Defendant was arrested for
-2- 1448
KA 10-01825
possessing cocaine and marihuana that the police found on his person
during a lawful traffic stop and pat down. The police officers
contacted the Division of Parole to inform it of defendant’s parole
violation. Parole officers decided to search defendant’s apartment,
and they requested the help of police officers and a canine unit.
Based on the evidence presented at the suppression hearing, we cannot
conclude that the court “erred, as a matter of law, in concluding that
the search of the defendant’s apartment by [the] parole officer[s],
with police assistance, . . . ‘was in furtherance of parole purposes
and related to [their] duty . . . as parole officer[s]’ ” (People v
Johnson, 63 NY2d 888, 890, rearg denied 64 NY2d 647; see Scott, 93
AD3d at 1194; People v Lynch, 60 AD3d 1479, 1480, lv denied 12 NY3d
926).
Defendant also challenges the sufficiency and weight of the
evidence supporting the convictions of criminal possession of a weapon
and controlled substances, contending that the People failed to show
constructive possession of the weapon and drugs by demonstrating that
he “had dominion and control over the area where the contraband was
found” (People v Shoga, 89 AD3d 1225, 1227, lv denied 18 NY3d 886; see
Penal Law § 10.00 [8]). At trial, the People established that
defendant was living in the apartment, he told his parole officer that
he was living in that apartment, he had keys to the apartment and to a
safe in the apartment in which contraband was found, his name was on
the apartment’s mailbox, pieces of mail addressed to him were found in
the apartment, and items of male clothing were found in the apartment.
Viewed in the light most favorable to the People, the evidence is
legally sufficient to establish that he had dominion and control over
the area where the contraband was found (see People v Bleakley, 69
NY2d 490, 495) and, viewing the evidence in light of the elements of
the possessory crimes in this nonjury trial (see People v Danielson, 9
NY3d 342, 349), including criminally using drug paraphernalia in the
second degree, we conclude that the verdict is not against the weight
of the evidence (see id. at 348-349; People v Lane, 7 NY3d 888, 890;
Bleakley, 69 NY2d at 495). We further conclude that the sentence is
not unduly harsh or severe.
Entered: December 28, 2012 Frances E. Cafarell
Clerk of the Court