Opinion
No. 2013–298 S CR.
04-03-2015
The PEOPLE of the State of New York, Respondent, v. Douglas HARE, Appellant.
Opinion
Appeal from a judgment of the District Court of Suffolk County, Sixth District (Janine A. Barbera–Dalli, J.), rendered February 1, 2013. The judgment convicted defendant, after a nonjury trial, of erecting a structure without a permit. The appeal from the judgment brings up for review the denial, after a hearing, of defendant's motion to suppress evidence.
ORDERED that the judgment of conviction is affirmed.
On June 1, 2012, the People charged defendant, in an information, with violating section 85–17(A) of the Code of the Town of Brookhaven, alleging that defendant had constructed an in-ground pool in the rear yard of his home without having obtained the necessary building permit. The District Court granted defendant's pro se motion for a Mapp/Dunaway hearing, and subsequently directed that the suppression hearing and the nonjury trial be held at the same time, to which defendant, proceeding pro se, raised no objection. At the hearing, the Town of Brookhaven's investigator testified that the Town's Buildings Department had received a complaint that defendant had illegally constructed an in-ground pool without a permit. His search of the Town's records revealed that no construction permit had been issued to defendant for the construction of a pool. On April 4, 2012, the investigator went to defendant's property, drove down a long driveway and past an open gate, parked near defendant's house, and knocked on the door. Receiving no response, the investigator, from the end of the driveway, observed that an in-ground pool 16–20 feet by 30 feet in size, had been constructed in the back yard. Photographs of the scene, admitted into evidence without objection, depicted the pool and three earth-moving vehicles parked nearby. The People's unrebutted documentary proof established that the house and land were jointly owned by defendant and his spouse.
In a decision on the motion and after trial, the District Court denied suppression of the investigator's observations, concluding that the investigator's entry onto the driveway and his observations of the pool did not violate defendant's Fourth Amendment rights and that the evidence established defendant's guilt of violating section 85–17(A) of the Code of the Town of Brookhaven.
On appeal, defendant, continuing to represent himself, argues that the accusatory instrument was facially insufficient to charge the offense; that the trial court's determination to deny suppression was error; that the joint hearing and trial violated his right to due process; that the court and prosecution violated his right to be informed of the informant's identity and his Sixth Amendment right to confront that “witness”; and that the charge itself violated his right to the quiet enjoyment of his property and to be free from governmental overreaching.
To be facially sufficient, an information must allege, among other things, facts of an evidentiary nature establishing, if true, every element of the offense charged and the defendant's commission thereof (CPL 100.40[1][c] ; see People v. Kalin, 12 NY3d 225, 228–229 [2009] ; People v. Jones, 9 NY3d 259, 261 [2007] ). “So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading” (People v. Casey, 95 N.Y.2d 354, 360 [2000] ). Applying this standard, we find that the information was sufficient on its face. The instrument identified the offense alleged to have been committed and set forth the complainant/investigator's sworn allegations of fact, based on personal knowledge, sufficient to inform defendant of the violation—that an in-ground pool had been constructed, without a permit having been issued therefor, on property belonging to defendant.
There is also no merit to the claim that the investigator's entry onto defendant's property constituted an illegal search. It is well settled that, as a general rule, no Fourth Amendment protections are implicated when a person, pursuing legitimate law enforcement purposes, enters upon driveways and walkways leading to a private residence, because the owner is deemed to have no legitimate expectation of privacy “in areas generally made accessible to visitors” that is, “[t]he route which any visitor to a residence would use” (United States v. Reyes, 283 F3d 446, 465 [2d Cir2002] [citation omitted]; see also United States v. Reed, 733 F.2d 492, 501 [8th Cir1984] [collecting cases]; 1 Wayne R. LaFave, Search and Seizure § 2.3 [f] at 782–786 [5th ed 2012] [“(w)hen the police come on to private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go (e.g. walkways, driveways, [and] porches), observations made from such vantage points are not covered by the Fourth Amendment”] [collecting cases] ). From such a vantage point, a “visual observation of an object already exposed to public view is no search at all” (Palmieri v. Lynch, 392 F3d 73, 81 [2d Cir2004] ; see e.g. United States v. Titemore, 437 F3d 251, 258–260 [2d Cir2006] ; Nasca v. Town of Brookhaven, 2008 WL 4426906, *7 [ED N.Y.2008] [upholding the propriety of a search by a building inspector who had entered onto Nasca's private property via the driveway and porch and observed code violations, because the inspector had “used the route which any visitor to the property would have used” and because the violation “was already exposed to public view”] ).
The language of the Fourth Amendment and of article I, § 12 of the N.Y. Constitution are identical and are “generally [construed to] confer similar rights” (People v. Robinson, 97 N.Y.2d 341, 350 [2001] ). While New York courts may “expand the rights of New York citizens beyond those required by the Federal Constitution when a longstanding New York interest [is] involved” (id.; see e.g. People v. Scott, 79 N.Y.2d 474, 491 [1992] ), in the area herein concerned, the federal rules are generally followed (see e.g. People v. Kozlowski, 69 N.Y.2d 761, 763 [1987] ; City of Rochester v. Teremy, 2 AD3d 1349, 1350 [2003] ; People v. Versaggi, 296 A.D.2d 429, 429–430 [2002] ). It is of no import that the inspector passed an open driveway gate en route to defendant's home (see People v. Gordon, 14 Misc.3d 765 [Sup Ct, Bronx County 2006] ).
Defendant never objected to the joinder of the suppression hearing with the nonjury trial in a single proceeding or to the court's failure to issue a ruling on the admissibility of evidence prior to trial. He has therefore failed to preserve any objection thereto for appellate review (see CPL 470.05[2] ; People v. Walker, 16 AD3d 604 [2005] ; People v. Mason, 305 A.D.2d 979 [2003] ; People v. Restrepo, 295 A.D.2d 627, 628 [2002] ; People v.. Melendez, 141 A.D.2d 860, 861 [1988] ; cf. CPL 710.40[3] ; People v. Hughes, 12 Misc.3d 128[A], 2006 N.Y. Slip Op 50919[U], *1 [App Term, 9th & 10th Jud Dists 2006] ). As to the merits of the suppression motion, upon a review of the record, we find that the District Court properly admitted the challenged evidence.
We have considered defendant's remaining contentions and find them to be without merit (see McMinn v. Town of Oyster Bay, 66 N.Y.2d 544, 548–549 [1985] ; People v. Goggins, 34 N.Y.2d 163, 170 [1974] ; People v. Davis, 111 A.D.2d 563, 565 [1985] ).
Accordingly, the judgment of conviction is affirmed.
TOLBERT, J.P., MARANO and GARGUILO, JJ., concur.