PEOPLE v. LOPEZ (2001)

Judgment, Supreme Court, New York County (Carol Berkman, J. at hearing;  Michael Obus, J. at jury trial and sentence), rendered June 9, 2000, convicting defendant of criminal possession of a controlled substance in the first degree, and sentencing him to a term of 16 years to life, unanimously affirmed.

 The court properly denied defendant's motion to suppress physical evidence.   Parole officers accompanied by police officers lawfully entered the apartment of defendant, a parolee, without a warrant since the parole officers' conduct was rationally and reasonably related to the performance of their official duties (see, People v.. Hale, 93 N.Y.2d 454, 692 N.Y.S.2d 649, 714 N.E.2d 861;  People v. Huntley, 43 N.Y.2d 175, 401 N.Y.S.2d 31, 371 N.E.2d 794;  People v.. Felder, 272 A.D.2d 884, 708 N.Y.S.2d 774, lv. denied 95 N.Y.2d 905, 716 N.Y.S.2d 646, 739 N.E.2d 1151).   There is no evidence that the parole officers were acting as a conduit for police activity.   Moreover, defendant consented to home entries and searches by parole officers as a condition of his parole (see, People v. Hale, supra ).   Further, the apartment where defendant was seized was not the home in which he was permitted to reside.   While the defendant in Hale was on probation rather than parole, that case is indistinguishable because, like the instant case, it involved consent to search as a condition of supervised release.

 We reject defendant's contention that suppression was nevertheless required because his arrest without a parole violation warrant was contrary to Executive Law § 259-i(3)(a)(i).   The parole officers did not actually “retake” defendant on a parole violation since the accompanying police arrested him after drugs were found in his apartment in plain view.   In any event, the exclusionary rule should not be applied because the error, if any, was not of constitutional dimension (see, People v. Dyla, 142 A.D.2d 423, 433-442, 536 N.Y.S.2d 799, lv. denied 74 N.Y.2d 808, 546 N.Y.S.2d 566, 545 N.E.2d 880;  see also, People v. Patterson, 78 N.Y.2d 711, 579 N.Y.S.2d 617, 587 N.E.2d 255;  Matter of Emilio M., 37 N.Y.2d 173, 371 N.Y.S.2d 697, 332 N.E.2d 874).