SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1293 

KA 10-02082 

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

BRIAN F. BRITTON, DEFENDANT-APPELLANT.

 

LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, THE ABBATOY LAW FIRM, PLLC,

ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR

DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (ROBERT C.

JEFFRIES OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Ontario County Court (William F.

Kocher, J.), rendered October 6, 2010. The judgment convicted

defendant, upon his plea of guilty, of attempted kidnapping in the

second degree and endangering the welfare of a child (two counts). 

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, inter alia, attempted kidnapping in the

second degree (Penal Law §§ 110.00, 135.20). Defendant’s contention

that he was unlawfully arrested in his home without an arrest warrant

in violation of Payton v New York (445 US 573) is unpreserved for our

review inasmuch as he failed to raise it before County Court (see

People v Smith, 55 NY2d 888, 890; People v Long, 195 AD2d 610, 610, lv

denied 82 NY2d 756; People v Sneed, 191 AD2d 969, 969-970), 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 [6] [a]). We

reject defendant’s contention that the search of his apartment was

unlawful because the police lacked a search warrant or valid consent

to search, and thus that the court erred in refusing to suppress the

rifle obtained by the police during the search of this apartment. The

People met their burden of establishing that the police reasonably

believed that defendant’s wife, the complainant, had the requisite

authority to consent to the search of the apartment (see People v

Gonzalez, 88 NY2d 289, 295; People v Littleton, 62 AD3d 1267, 1269, lv

denied 12 NY3d 926). The evidence at the suppression hearing

established that police officers responded to a report of a domestic

dispute possibly involving a gun at defendant’s apartment. As the

police approached the door of the apartment, they heard a male yelling

and a female crying. After defendant was removed from the apartment,
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KA 10-02082 

the complainant permitted the police to enter the apartment and

informed them that she lived there. The complainant then told the

police that defendant had threatened her with a gun and directed the

officers to the location of the rifle. The rifle was located in a

closet inside the doorway to the apartment. The complainant consented

to the seizure of the rifle and, indeed, asked the police to remove it

for her safety. Thus, “the record establishes that the searching

officer[s] relied in good faith on the apparent authority of [the

complainant] to consent to the search, and the circumstances

reasonably indicated that [she] had the requisite authority to consent

to the search” (People v Fontaine, 27 AD3d 1144, 1145, lv denied 6

NY3d 847; see People v Smith, 101 AD3d 1794, 1795, lv denied 20 NY3d

1104; see generally People v Scott, 31 AD3d 1165, 1165-1166, lv denied

7 NY3d 851).

Finally, defendant further contends that the court erred in

refusing to suppress the rifle seized from his apartment as the result

of an arrest that was made without probable cause. Although defendant

moved to suppress the rifle on that ground, he abandoned it by

expressly limiting the scope of the suppression hearing to the

legality of the search of his apartment and the seizure of the rifle

and, furthermore, by failing to seek a ruling on that part of his

omnibus motion (see generally People v Adams, 90 AD3d 1508, 1509, lv

denied 18 NY3d 954; People v Adger, 83 AD3d 1590, 1591, lv denied 17

NY3d 857; People v Nix, 78 AD3d 1698, 1698-1699, lv denied 16 NY3d

799, cert denied ___ US ___, 132 S Ct 157; People v Bigelow, 68 AD3d

1127, 1128, lv denied 14 NY3d 797).

Entered: January 3, 2014 Frances E. Cafarell

Clerk of the Court