LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY
OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO
(JAMES M. MARRA OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND
from a judgment of the Supreme Court, Erie County (Penny M.
Wolfgang, J.), rendered January 5, 2015. The judgment
convicted defendant, upon his plea of guilty, of criminal
possession of a controlled substance in the second degree and
criminal possession of a weapon in the second degree.
hereby ORDERED that the judgment so appealed from is
On appeal from a judgment convicting him upon his plea of
guilty of criminal possession of a controlled substance in
the second degree (Penal Law § 220.18 ) and criminal
possession of a weapon in the second degree (§ 265.03
), defendant contends that Supreme Court erred in refusing
to suppress evidence seized during a search of his residence
by parole officers. We reject that contention.
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 [or her] duty as
a parole officer" (People v Huntley, 43 N.Y.2d
175, 179; see People v Escalera, 121 A.D.3d 1519,
1520, lv denied 24 N.Y.3d 1083; People v
Nappi, 83 A.D.3d 1592, 1593-1594, lv denied 17
N.Y.3d 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"
(Escalera, 121 A.D.3d at 1520 [internal quotation
marks omitted]). Thus, "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 A.D.2d 85, 90).
to defendant's contention, we conclude that the record
supports the court's determination that the search was
" rationally and reasonably related to the performance
of the parole officer's duty' and was therefore
lawful" (People v Johnson, 94 A.D.3d 1529,
1532, lv denied 19 N.Y.3d 974). The parole officer
testified that he searched defendant's apartment for the
purpose of determining if defendant was in violation of the
conditions of his parole because he "received credible
information from law enforcement sources that defendant
possessed a large quantity of cocaine in his" residence
(Escalera, 121 A.D.3d at 1520). With respect to the
credibility of the law enforcement source, the parole
officer's testimony, along with the testimony of an agent
with the Federal Bureau of Investigation (FBI) and other
parole officers, established that the parole officer received
credible information, originating from a confidential
informant of the FBI agent who had proven to be reliable in
the past, that defendant was in possession of a large
quantity of cocaine (see People v Robinson, 72
A.D.3d 1277, 1278, lv denied 15 N.Y.3d 809). To the
extent that defendant challenges that testimony, we
"afford deference to the court's determination that
the... testimony [of the People's witnesses] was
credible" (Johnson, 94 A.D.3d at 1532).
conclude that defendant's further contention that the
parole officer was acting as an agent of law enforcement
agencies is undermined by the testimony of defendant's
parole officer and an FBI agent that the law enforcement
agency played no role in the decision to search
defendant's residence. The FBI agent further testified
that the FBI was not investigating defendant on this matter,
did not have an open file on defendant, and did not relay the
information in order to have the parole officers search
defendant's home on their behalf (see Escalera,
121 A.D.3d at 1520). Thus, we cannot conclude on this record
that the search was "designed solely to collect
contraband or evidence in aid of the prosecution of an
independent criminal investigation"
(Candelaria, 63 A.D.2d at 90).
concedes that his remaining contention regarding the search
of his residence is unpreserved for our review (see
CPL 470.05 ), 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  [a]).
respect to defendant's remaining contentions, we note
that, " [b]y pleading guilty, defendant forfeited review
of [Supreme] Court's Molineux and [
Sandoval ] ruling[s]' " (People v
Pierce, 142 A.D.3d 1341, 1341; see People v