SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

494 

KA 14-01973 

PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

CHRISTOPHER WHEELER, DEFENDANT-APPELLANT. 

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DAVID A.

HERATY OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Erie County (Penny

M. Wolfgang, J.), rendered March 10, 2014. The judgment convicted

defendant, upon his plea of guilty, of criminal possession of a weapon

in the second degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: On appeal from a judgment convicting defendant upon

his plea of guilty of criminal possession of a weapon in the second

degree (Penal Law § 265.03 [3]), defendant contends that Supreme Court

erred in refusing to suppress evidence located during a compliance

check by his parole officer, as well as statements that he made to the

parole officer and to the police after his arrest. We reject that

contention.

“[G]reat deference should be given to the determination of the

suppression court, which had the opportunity to observe the demeanor

of the witnesses and to assess their credibility, and its findings

should not be disturbed unless clearly erroneous” (People v Layou, 134

AD3d 1510, 1511, lv denied 27 NY3d 1070, reconsideration denied 28

NY3d 932; see People v Daniels, 147 AD3d 1392, 1392-1393; People v

Hogan, 136 AD3d 1399, 1400, lv denied 27 NY3d 1070). Contrary to

defendant’s contention, nothing about the parole officer’s testimony

is “ ‘unbelievable as a matter of law, manifestly untrue, physically

impossible, contrary to experience, or self-contradictory’ ” (Layou,

134 AD3d at 1511).

The record supports the court’s determination that the search of

defendant’s residence was “ ‘rationally and reasonably related to the

performance of the parole officer’s duty’ and was therefore lawful”

(People v Johnson, 94 AD3d 1529, 1532, lv denied 19 NY3d 974). The
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KA 14-01973 

parole officer testified that he searched defendant’s residence 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 [gun] in his”

residence (People v Escalera, 121 AD3d 1519, 1520, lv denied 24 NY3d

1083; see People v Nappi, 83 AD3d 1592, 1593-1594, lv denied 17 NY3d

820). The assistance of the police at defendant’s residence did not

render the search a police operation (see People v Johnson, 54 AD3d

969, 970).

Defendant concedes that he improperly moved pursuant to CPL

330.30 (1) to set aside the verdict in this plea case, but he contends

that the court was required to convert the motion to one under either

CPL article 440 or CPL 220.60 and to grant it. We reject that

contention. Even assuming, arguendo, that the court had any such

obligation, we conclude that a motion under CPL article 440 would have

been premature (see People v Spirles, 294 AD2d 810, 811, lv denied 98

NY2d 713, reconsideration denied 99 NY2d 540). Furthermore, the

motion, even if addressed under CPL 220.60, lacks merit because the

issues raised therein would not be appropriately argued in the context

of a motion to withdraw a plea of guilty (see People v Anderson, 63

AD3d 1617, 1618, lv denied 13 NY3d 858). Finally, to the extent that

defendant’s contention that his counsel was ineffective in failing to

move to withdraw the guilty plea survives his plea (see People v

Dixon, 147 AD3d 1518, 1519), we conclude that his contention lacks

merit (see generally People v Ford, 86 NY2d 397, 404).

Entered: April 28, 2017 Frances E. Cafarell

Clerk of the Court