SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1180 

KA 12-00390 

PRESENT: SMITH, J.P., CENTRA, FAHEY, CARNI, AND WHALEN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

MICHAEL PLUMLEY, DEFENDANT-APPELLANT. 

 

ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),

FOR DEFENDANT-APPELLANT.

MICHAEL PLUMLEY, DEFENDANT-APPELLANT PRO SE.

DAVID W. FOLEY, DISTRICT ATTORNEY, MAYVILLE (LAURIE M. BECKERINK OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Chautauqua County Court (John T.

Ward, J.), rendered December 19, 2011. The judgment convicted

defendant, upon his plea of guilty, of robbery in the first degree. 

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 robbery in the first degree (Penal Law §

160.15 [1]). We reject defendant’s contention that County Court erred

in refusing to suppress physical evidence seized by the police from

the bedroom and an adjoining room in an apartment in which defendant

had stayed. “It is well established that the police need not procure

a warrant in order to conduct a lawful search when they have obtained

the voluntary consent of a party possessing the requisite authority or

control over the premises or property to be inspected” (People v

Adams, 53 NY2d 1, 8, rearg denied 54 NY2d 832, cert denied 454 US 854;

see People v Cosme, 48 NY2d 286, 290). Thus, “ ‘where two or more

individuals share a common right of access to or control of the

property to be searched, any one of them has the authority to consent

to a warrantless search in the absence of the others’ ” (People v

Rivera, 83 AD3d 1370, 1372, lv denied 17 NY3d 904, quoting Cosme, 48

NY2d at 290). 

Here, the People met their burden of establishing that the police

reasonably believed that the lessee of the subject apartment had the

authority to consent to the search of the apartment, including the

areas of the apartment from which the physical evidence was seized

(see People v Smith, 101 AD3d 1794, 1794, lv denied 20 NY3d 1104; see

also Adams, 53 NY2d at 9-10; see generally People v Berrios, 28 NY2d
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361, 367). Indeed, the police searched the apartment pursuant to a

waiver that was voluntarily signed by the lessee of that premises, and

the bedroom and an adjoining room from which the physical evidence was

seized were areas that were accessible to everyone in the apartment. 

Specifically, the evidence establishes that there was no door to the

bedroom, and that the adjacent room at issue was connected to the

bedroom by “an open doorway.”

Defendant appears to contend that we should also consider whether

the police had consent to search the bags found within the rooms at

issue. Although defendant relies on case law containing the wellsettled principle that general consent granted by someone other than a

defendant to search a premises does not validate the search of

something used exclusively by the defendant for personal effects,

i.e., a drawer, bag or similar item (see People v Holmes, 89 AD3d

1491, 1492; see also People v Gonzalez, 88 NY2d 289, 294-295), that

reliance is misplaced inasmuch as there is no evidence that the police

seized anything from the apartment that was stored inside of a bag. 

Although the police officer who testified on behalf of the People at

the suppression hearing acknowledged that there were bags in the area

that was searched, he provided no indication that such bags were

opened or that evidence was taken from those bags. We thus conclude

that the People met “the burden of going forward to show the legality

of the police conduct in the first instance” (Berrios, 28 NY2d at 367

[internal quotation marks and emphasis omitted]), and that defendant

otherwise failed to meet his “ultimate burden of proving that the

[seized] evidence should not be used against him” (id.).

We also reject defendant’s contention that the court erred in

refusing to suppress evidence of the victim’s identification of him. 

Contrary to defendant’s contention, “the subjects depicted in the

photo array are sufficiently similar in appearance so that the

viewer’s attention is not drawn to any one photograph in such a way as

to indicate that the police were urging a particular selection”

(People v Quinones, 5 AD3d 1093, 1093, lv denied 3 NY3d 646; see

People v Page, 105 AD3d 1380, 1382). The fact that defendant is the

only person in the photo array wearing a red shirt is of no moment

inasmuch as defendant was not the only person shown wearing a darkcolored shirt, defendant was not shown in a shirt similar to the white

thermal shirt that he was wearing for a prior showup identification,

and shirt color was not a part of the description of the assailant

that the victim provided to the police (see People v Bell, 19 AD3d

1074, 1075, lv denied 5 NY3d 803, 850; People v Porter, 2 AD3d 1429,

1430, lv denied 2 NY3d 744). Contrary to defendant’s further

contention, the fact that the severely injured victim identified

defendant in a photo array approximately five days after the victim

failed to identify defendant in a showup procedure that was conducted

at the hospital where the victim was undergoing treatment is of no

consequence here. “ ‘[M]ultiple pretrial identification procedures

are not inherently suggestive’ ” (People v Morgan, 96 AD3d 1418, 1419,

lv denied 20 NY3d 987; see People v Peterkin, 81 AD3d 1358, 1359, lv

denied 17 NY3d 799) and, in this case, the police officer who

testified on behalf of the People indicated that the victim did not

remember anything about the showup procedure at the time the victim
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KA 12-00390 

identified defendant in the photo array (cf. People v Thompson, 17

AD3d 138, 139, lv denied 5 NY3d 795; see generally People v Young, 261

AD2d 109, 110, lv denied 93 NY2d 1007). Even assuming, arguendo, that

the victim remembered the showup identification procedure, we note

that the shirt defendant wore during that procedure was a different

color than the shirt defendant wore in the picture used in the photo

array (cf. generally People v Munoz, 223 AD2d 370, 370, lv denied 88

NY2d 990), and there is nothing in the record establishing that the

photo array was tainted by the showup procedure (cf. People v

Anderson, 94 AD3d 1010, 1011, lv denied 19 NY3d 956, reconsideration

denied 19 NY3d 1101). We have reviewed defendant’s remaining

contention and conclude that it is without merit. 

Entered: November 15, 2013 Frances E. Cafarell

Clerk of the Court