SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

740 

KA 15-00038 

PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, TROUTMAN, AND SCUDDER, JJ. 

 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

BYRON BUZA, DEFENDANT-APPELLANT. 

 

LAW OFFICES OF PETER K. SKIVINGTON PLLC, GENESEO (DANIEL R. MAGILL OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Livingston County Court (Robert B.

Wiggins, J.), rendered January 6, 2015. The judgment convicted

defendant, after a nonjury trial, of criminal possession of marihuana

in the second degree and criminal possession of a controlled substance

in the seventh degree. 

It is hereby ORDERED that the judgment so appealed from is

reversed on the law and a new trial is granted. 

Memorandum: Defendant appeals from a judgment convicting him

following a nonjury trial of criminal possession of marihuana in the

second degree (Penal Law § 221.25) and criminal possession of a

controlled substance in the seventh degree (§ 220.03).

Upon receiving information that a certain residence in the Town

of Springwater might be housing drugs, Sheriff’s deputies from the

Livingston County Sheriff’s Office proceeded to the residence to

investigate. No one was home when the deputies arrived, but an

investigator located defendant, whom the investigator believed to be

an occupant of the residence, working at a nearby ski resort. 

Defendant accompanied the investigator to the residence where

defendant signed a form containing boilerplate language giving his

consent for “the above named officer(s) to conduct a complete search

of the premises and property.” That form further stated: “The above

said officer(s) further have my permission to take from my premises

and property, any letters, papers, materials or any other property or

things which they desire as evidence for criminal prosecution in the

case or cases under investigation.” In addition, the form listed the

deputies’ names, defendant’s name, and the address to be searched. 

Before the deputies presented the completed form for defendant’s

signature, it was read to him.
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KA 15-00038 

After he signed the form, defendant led the deputies into the

residence through a door that, according to their trial testimony, may

or may not have been unlocked. During the ensuing search, defendant

told the deputies that one of the three bedrooms of the residence

“belonged to, or was rented to” another person, whom the deputies

believed to be defendant’s roommate. After speaking with that person

by telephone, an investigator “obtain[ed] a search warrant for the

residence and [that other person]’s room.” A search of the residence

uncovered approximately six pounds of marihuana and an undetermined

quantity of mushrooms containing psilocin, a controlled substance. 

The majority of the marihuana and mushrooms were found in plastic

containers stored in a closet adjacent to the living room.

Contrary to defendant’s contention, we conclude that the verdict

is based on legally sufficient evidence (see generally People v

Bleakley, 69 NY2d 490, 495). In addition, viewing the evidence in

light of the elements of the crimes in this nonjury trial (see People

v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not

against the weight of the evidence (see generally Bleakley, 69 NY2d at

495).

We nonetheless agree with defendant’s further contention that

County Court erred in failing to preclude evidence of an admission

that he allegedly made, but for which the People did not provide a CPL

710.30 notice. The People served on defendant a CPL 710.30 notice of

their intent to offer defendant’s admissions as evidence at trial and

attached a police report to the notice. The police report referenced

defendant’s statement to the deputies, during the search, that one of

the bedrooms belonged to another person. At trial, however, the court

permitted an investigator to testify that defendant “explained where

his [own] room was,” referring to another of the bedrooms. Inasmuch

as the CPL 710.30 notice did not cover that statement, the court’s

ruling on that point was error (see CPL 710.30 [1]; see also People v

Lopez, 84 NY2d 425, 428; People v Pallagi, 91 AD3d 1266, 1268). That

error permitted the court to conclude that defendant was an occupant

of the residence and, consequently, to find that defendant had

constructive possession of the drugs found therein (see People v

Slade, 133 AD3d 1203, 1205-1207, lv denied 26 NY3d 1150). 

Contrary to the People’s contention, defendant’s statement was

not pedigree information exempt from the CPL 710.30 notice

requirement. Generally, an inculpatory statement of a defendant

concerning his or her address is exempt from the notice requirement if

elicited through routine administrative questioning, as long as the

questioning is not designed to elicit an incriminating response (see

People v Velazquez, 33 AD3d 352, 353, lv denied 7 NY3d 929; People v

Baker, 32 AD3d 245, 250, lv denied 7 NY3d 865). Here, the People

failed to establish that defendant’s statement concerning his

residency was elicited through such routine administrative

questioning. In any event, we conclude that any question that may

have prompted defendant’s statement was likely, in the context of the

police search in progress, “to elicit [an] incriminating admission[]”

with respect to the possessory crimes with which defendant was charged

(People v Rodney, 85 NY2d 289, 293; see Slade, 133 AD3d at 1206;
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KA 15-00038 

Velazquez, 33 AD3d at 354).

We disagree with our dissenting colleagues that the language in

the consent to search form contains “specific admissions regarding

[defendant’s] dominion and control of the residence.” To the

contrary, the deputies prepared that form themselves by inserting

defendant’s name, as well as the address of the place to be searched,

into a form that already contained boilerplate language—what one

testifying Sheriff’s deputy called “our permission to search

document.” In our view, that consent alone was not overwhelming

evidence that defendant exercised dominion and control over the

premises (see generally People v Siplin, 29 NY2d 841, 842). Moreover,

defendant’s conduct during the course of the investigation was equally

consistent with a person who was merely familiar with the subject

residence, as it was with an occupant thereof. Indeed, there was no

evidence that the investigators observed a name on a mailbox, keys in

defendant’s possession, or framed items displaying his name or image

(cf. People v Davis, 101 AD3d 1778, 1779-1780, lv denied 20 NY3d 1060;

People v Edwards, 39 AD3d 1078, 1079-1080), nor was there evidence

that the investigators recovered any property or papers from the

residence, aside from one Christmas gift, that bore defendant’s name

or other indicia of ownership, such as photo identification, a

prescription, or utility bills or other mail (cf. People v Holland,

126 AD3d 1514, 1515, lv denied 25 NY3d 1165; People v Patterson, 13

AD3d 1138, 1139, lv denied 4 NY3d 801). Given the above, we are

compelled to conclude that the investigator’s testimony with respect

to defendant’s statement of residency was a pivotal component of the

People’s case in establishing defendant’s residency at the premises

and, thus, defendant’s constructive possession of the drugs. Unlike

our dissenting colleagues, we therefore cannot conclude that the

court’s error in admitting defendant’s statement is harmless (see

Slade, 133 AD3d at 1206-1207).

All concur except PERADOTTO, J.P., and SCUDDER, J., who dissent and

vote to affirm in the following memorandum: Although we agree with

the majority that County Court erred in failing to preclude the

testimony regarding defendant’s statement to the police explaining

where his own room was located in the residence because the People’s

CPL 710.30 notice did not include that statement, we do not agree on

this record that the error requires reversal of the judgment of

conviction and a new trial. We respectfully dissent because, in our

view, the error was harmless, and therefore the judgment should be

affirmed.

The record does not support the majority’s conclusion that

defendant’s statement to the police about the location of his room was

the linchpin of the People’s case establishing that defendant was an

occupant of the residence and thus had constructive possession of the

drugs found therein. Here, the evidence established that, after two

investigators responded to the residence to investigate and found that

no one was home, one of the investigators located defendant at a

nearby ski resort, they had a brief conversation there, and defendant

then agreed to come back to the residence. Defendant drove his ATV

and was followed by the investigator in his patrol vehicle. The two
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KA 15-00038 

investigators then asked defendant whether he would provide them with

permission to look inside the residence. After some conversation and

contemplation, defendant verbally agreed.

Contrary to the majority’s conclusion, defendant did not merely

provide a generic consent to search without more; rather, he signed a

detailed written consent form—the knowing and voluntary execution of

which he has never challenged—wherein he made specific admissions

regarding his dominion and control over the residence. On the consent

form, which contained defendant’s name and date of birth as well as

the address of the residence, defendant stated that he was informed by

the investigators of his “constitutional right not to have a search

made of the premises and property owned by [him] and/or under [his]

care, custody and control, without a search warrant.” Defendant

further stated that he willingly gave his permission for the

investigators to conduct a complete search of the premises and

property, and “to take from [his] premises and property” any items

desired as evidence for a criminal prosecution. Defendant thus

acknowledged through the duly executed and detailed consent form that

the residence was under his dominion and control.

In addition to returning to the residence in the lead and

thereafter providing his consent to search the residence over which he

had control, defendant’s further actions and the evidence discovered

by the police were also entirely consistent with defendant’s occupancy

of the residence. After consenting to the search, defendant led the

investigators through the door of the residence. Although the

investigators may have initially thought that they had consent to

search the entire residence, it was subsequently established that one

of the rooms “belonged to, or was rented to” another person that one

of the investigators characterized as defendant’s “roommate.”

Defendant then contacted that person by cell phone and, after speaking

with him, that same investigator left the residence and obtained a

search warrant for the entire residence, including the other person’s

room. Defendant’s consent thus had extended only to the common areas

of the residence. As noted by the majority, most of the marihuana and

mushrooms recovered during the search were found in plastic containers

stored in a closet adjacent to the living room. In part of the living

room, the police also found a tin containing mushrooms and affixed

with a handwritten note bearing the message, “Byron[,] Merry Xmas!”

Based on the foregoing, we conclude that the error in admitting

defendant’s unnoticed statement is harmless. Considering the abovementioned evidence in totality without reference to the error and,

particularly, though not exclusively, defendant’s admissions in the

consent form that he maintained custody and control of the residence,

we conclude that the evidence of defendant’s constructive possession

of the subject drugs is overwhelming (see generally People v Fineout,

139 AD3d 1394, 1395-1396). There is no significant probability that

the court would have acquitted defendant in the absence of the

testimony regarding his statement to the investigators explaining the

location of his room in the residence (see generally People v Arafet, 
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KA 15-00038 

13 NY3d 460, 467; People v Crimmins, 36 NY2d 230, 241-242). 

Entered: November 10, 2016 Frances E. Cafarell

Clerk of the Court