The People, Respondent,v.Everett B. McMillan, Appellant.BriefN.Y.March 29, 2017To be argued by JOHN M. CASTELLANO (TIME REQUESTED: 15 MINUTES) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against EVERETT McMILLAN, Defendant-Appellant. W44444444444444444444444444444444444444444444 BRIEF FOR RESPONDENT 44444444444444444444444444444444444444444444 RICHARD A. BROWN District Attorney Queens County Attorney for Respondent 125-01 Queens Boulevard Kew Gardens, New York 11415 (718) 286-5801 ROBERT J. MASTERS JOHN M. CASTELLANO Assistant District Attorneys Of Counsel JULY 19, 2016 Queens County Indictment Number 2259/09 APL 2015-00304 TABLE OF CONTENTS Page TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 THE MAPP HEARING.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 The People’s Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Defendant’s Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Closing Arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 The Court’s Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 JURY SELECTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 POINT ONE IT WAS REASONABLE UNDER THE FOURTH AMENDMENT FOR THE POLICE TO SEARCH DEFENDANT’S CAR WHEN, IN THE COURSE OF EXECUTING A WARRANT AT THE REQUEST OF PAROLE, THEY OBTAINED SPECIFIC RELIABLE INFORMATION THAT HE HAD A GUN IN THE CAR.. .. . . . . . . . . . . . . . . . . . . . . . . . . . 28 A. Defendant Preserved Only a Fourth Amendment Claim at The Hearing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 B. The Search Was Authorized under the Fourth Amendment Based on the Specific Information That Defendant Had a Gun in His Car, Regardless of His Status as a Parolee. . . . . . . . . . . 33 C. The Search Was Reasonable Under Supreme Court Precedent As a Parole Search, Given Defendant’s Reduced Expectation of Privacy After Agreeing to an Unrestricted Search Provision, the State’s Strong Interest in Obtaining Proof of His Parole Violation, and the High Degree of Individualized Suspicion Possessed by the Police. . . . . . . . . . . . . . . 42 D. Under the Fourth Amendment, the People Were Not Required to Show That the Police Had a Parole-Related, as Opposed to an Investigatory, Purpose, and the Execution of the Search by a Police Officer Rather than a Parole Officer Was Constitutionally Insignificant. . . . . . . . . . . . . . . . . . . . 50 POINT TWO THE TRIAL COURT PROPERLY DISALLOWED DEFENDANT’S PEREMPTORY CHALLENGE WHICH COUNSEL TWICE CONCEDED WAS BASED ON “NOTHING SPECIFIC,” AND DEFENDANT’S CURRENT ARGUMENT TO THE CONTRARY IS UNPRESERVED FOR APPELLATE REVIEW. . . . . . . . . . . . . . . . . . . . . 63 POINT THREE MOST OF DEFENDANT’S PRO SE ARGUMENTS ARE UNREVIEWABLE AND ALL ARE MERITLESS.. . . . . . . . . . . . . . . . . . 81 CONCLUSION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 ii TABLE OF CONTENTS Page No. Cases Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Batson v. Kentucky, 476 U.S. 79 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 67, 68 California v. Carney, 471 U.S. 386 (1985).. . . . . . . . . . . . . . . . . . . . . . 7, 34, 35, 36 Carroll v. United States, 267 U.S. 132 (1925). . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Chambers v. Maroney, 399 U.S. 42 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Crawford v. Washington, 541 U.S. 36 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Davis v. Ayala, 135 S. Ct. 2187, reh'g denied, 136 S. Ct. 14 (2015). . . . . . . . 70, 78 Foster v. Chatman, 195 L.Ed.2d 1 (2016). . . . . . . . . . . . . . . . . . . 67, 68, 69, 77-78 Georgia v. McCollum, 505 U.S. 42 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Griffin v. Wisconsin, 483 U.S. 868 (1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Helphenstine v. Commonwealth, 423 S.W.3d 708 (Ky. 2014) . . . . . . . . . . . . 53, 60 Illinois v. Gates, 462 U.S. 213 (1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Maryland v. Dyson, 527 U.S. 465 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Michigan v. Bryant, 562 U.S. 344 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . 86n.24 Miller El v. Dretke, 545 U.S. 231 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . 69, 71, 77 Pennsylvania v. Labron, 518 U.S. 938 (1996) .. . . . . . . . . . . . . . . . . . . . . . . . 35, 36 People ex rel. Matthews v. New York State Div. of Parole, 58 N.Y.2d 196 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 People ex rel. McGee v. Walters, 62 N.Y.2d 317 (1984) . . . . . . . . . . . . . . . . . . . 44 iii People v. Alvarez, 70 N.Y.2d 375 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 People v. Andrews, 136 A.D. 3d 596 (1 Dept. 2016) . . . . . . . . . . . . . . . . . . . . . . 60st People v. Arafet, 13 N.Y.3d 460 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 People v. Baker, 14 N.Y.3d 266 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 People v. Baldi, 54 N.Y.2d 137 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 People v. Bigelow, 66 N.Y.2d 417 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 People v. Blasich, 73 N.Y.2d 673 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 People v. Bolling, 79 N.Y.2d 317 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 People v. Carver, 27 N.Y.3d 418 (2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 People v. Clark, 45 N.Y.2d 432 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 People v. Coffman, 2 Cal. App. 3d 681 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 People v. Cullen, 24 N.Y.3d 1014 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 People v. Ferguson, 67 N.Y.2d 383 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 People v. Graham, 25 N.Y.3d 994 (2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 People v. Griggs, __ N.Y.3d __, 2016 N.Y. Slip Op. 04655 (June 14, 2016). . . . . . . . . . . . . . . . 16, 89, 93, 95 People v. Gross, 26 N.Y.3d 689 (2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 People v. Hale, 93 N.Y.2d 454 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 55, 60 People v. Harris, 26 N.Y.3d 1 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 People v. Hawthorne, 80 N.Y.2d 873 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 People v. Hecker, 15 N.Y.3d 625 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Heide, 84 N.Y.2d 943 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 People v. Henderson, 27 N.Y.3d 509 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . 93, 96 iv People v. Hernandez, 75 N.Y.2d 350 (1990), aff'd sub nom. Hernandez v. New York, 500 U.S. 352 (1991). . . . . . . . . . . . . . . . . . . . 68, 70 People v. Hetrick, 80 N.Y.2d 344 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 People v. Hogan, 26 N.Y.3d 779 (2016).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 People v. Huntley, 43 N.Y.2d 175 (1977).. . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Jackson, 46 N.Y.2d 171 (1978).. . . . . . . . . . . . . . . . . . . . . . . . . 11, 51, 55 People v. James, 99 N.Y.2d 264 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 66 People v. Johnson, 63 N.Y.2d 888 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Johnson, 66 N.Y.2d 398 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 People v. Kello, 96 N.Y.2d 740 (2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 85 People v. Kern, 75 N.Y.2d 638 (1990) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 People v. Ketcham, 93 N.Y.2d 416 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 People v. Kidkarndee, 41 A.D.3d 247, 837 N.Y.S.2d 652 (1 Dept. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69st People v. Langen, 60 N.Y.2d 170 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 People v. Ludwig, 24 N.Y.3d 221 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87-88 People v. McMillan, 130 A.D.3d 651 (2d Dept. 2015).. . . . . . . . . . . . . . . . . . . 6, 74 People v. Medina, 53 N.Y.2d 951 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 People v. Milerson, 51 N.Y.2d 919 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 People v. Miranda, 27 N.Y.3d 931 (2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 People v. Molineux, 168 N.Y. 264 (1901). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 People v. Morris, 21 N.Y.3d 588 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 People v. Nieves Andino, 9 N.Y.3d 12 (2007). . . . . . . . . . . . . . . . . . . . . . . . 86n.24 v People v. Orlando, 56 N.Y.2d 441 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . 7, 34, 37 People v. P.J. Video, Inc., 68 N.Y.2d 296 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . 32 People v. Panton, __ N.Y.3d __ ; 2016 N.Y. Slip Op. 05181. . . . . . . . . . . . . . . . 31 People v. Parris, 83 N.Y.2d 342 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 41 People v. Parson, __ N.Y.3d __, 2016 N.Y. Slip Op. 4654 (June 14, 2016) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93, 98 People v. Reynoso, 2 N.Y.3d 820 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 86 People v. Robinson, 97 N.Y.2d 341 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . 49n.14 People v. Roopchand, 65 N.Y.2d 837 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 People v. Santiago, 22 N.Y.3d 740 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 People v. Scott, 70 N.Y.2d 420 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 People v. Sullivan, 29 N.Y.2d 69 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22n.4 People v. Tonge, 93 N.Y.2d 838 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 89 People v. Torres, 289 A.D.2d 136 (2d Dept. 2001). . . . . . . . . . . . . . . . . . . . . . . . 69 People v. Tosca, 98 N.Y.2d 660 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 People v. Van Buren, 198 A.D.2d 533 (2d Dept. 1993). . . . . . . . . . . . . . . . . . . . . 60 People v. Vandover, 20 N.Y.3d 235 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 People v. Vilardi, 76 N.Y.2d 67 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 People v. Wallace, 27 N.Y.3d 1037 (2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 People v. Williams, 46 N.Y.2d 1070 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 People v. Wilson, 228 Ill. 2d 35 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Reed v. Quarterman, 555 F.3d 364 (5th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . 77 Samson v. California, 547 U.S. 843 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . passim vi Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67, 69 Sublett v. Com., 203 S.W.3d 701 (Ky. 2006) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 United States v. Alvarado, 923 F.2d 253 (2d Cir. 1991) . . . . . . . . . . . . . . . . . . . . 75 United States v. Cardona, 903 F.2d 60 (1st Cir. 1990) . . . . . . . . . . . . . . . . . . 45, 61 United States v. Charles, 801 F.3d 855 (7 Cir. 2015) . . . . . . . . . . . . . . . . . . . . . 39th United States v. Flores, 288 F. App'x 365 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . 57 United States v. Gemma, 818 F.3d 23 (1st Cir. 2016) . . . . . . . . . . . . . . . . . . . 22n.4 United States v. Grant, 563 F.3d 385 (8th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . 74 United States v. Hallman, 365 F.2d 289 (3d Cir. 1966) . . . . . . . . . . . . . . . . . . . . 60 United States v. Knights, 534 U.S. 112 (2001). . . . . . . . . . . . . . . . . . . . . . . . passim United States v. Makeef, 820 F.3d 995 (8 Cir. 2016) .. . . . . . . . . . . . . . . . . . . . . 62th United States v. Ross, 456 U.S. 798 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Whren v. United States, 517 U.S. 806 (1996). . . . . . . . . . . . . . . . . . . . . . . . . 49n.14 Statutes 9 NYCRR § 8004.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60n.17 CPL § 470.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 66, 85 Executive Law section 259-i. . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 44n.11, 59, 60n.17 N.Y. Const. Art. VI, § 3.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Penal Law § 221.05. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Penal Law § 265.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Penal Law § 265.03. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 vii V.T.L.§ 1204. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22n.4 Other Authorities Wayne R. LaFave, Search and Seizure, sec. 10.10(e) at 576 (5 ed. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60th 1 LaFave, Search and Seizure § 3.2 [d], at 580 [2d ed]. . . . . . . . . . . . . . . . . . 40-41 Karger, Powers of the New York Court of Appeals, § 21:1 (Rev. 3d Ed. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 viii COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : EVERETT McMILLAN, : Defendant-Appellant. : ---------------------------------------------------------------------x BRIEF FOR RESPONDENT PRELIMINARY STATEMENT Defendant Everett McMillan appeals from an order of the Appellate Division, Second Department, dated July 1, 2015, affirming a December 16, 2010, judgment of the Supreme Court, Queens County (Hollie, J.). By that judgment, defendant was convicted, after a jury trial, of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[3]); Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[1]); and Unlawful Possession of Marijuana (Penal Law § 221.05). Defendant was adjudicated a persistent violent felony offender and was sentenced to concurrent indeterminate prison terms of twenty years to life for second-degree criminal possession of a weapon and three-and-one-half years to seven years for third-degree criminal possession of a weapon, and a definite term of ten days for marijuana possession. The court’s sentence was specified to run consecutively with any of defendant’s outstanding parole sentences. INTRODUCTION On December 30, 2008, defendant, a five-time felony offender who had previously violated parole, was again released to parole as part of his then current1 indeterminate sentence of one and one-half to three years. At that time, he signed a document in which he stated, “I voluntarily accept parole supervision” and agreed to certain specified conditions of parole. These included, among other things, a provision barring him from possessing any firearm of any type and an unrestricted search provision in which defendant acknowledged, “I fully understand that my person, residence and property are subject to search and inspection.” Defendant subsequently accrued fourteen parole violations, including failing to report to his parole officer and dropping out of a drug program. As a result, the Department of Parole issued a parole warrant for his arrest on June 17, 2009. Under Executive Law section 259-i(3)(a)(ii), and the language of the warrant itself, the warrant could be executed by “any parole officer . . . or police officer.” Within a week, the warrant was forwarded to the Joint Apprehension Warrant Squad – a joint law enforcement unit composed of both parole officers and detectives of the New York City Police Department that was specifically tasked with executing parole warrants. Det. Kevin Herlihy, accompanied by a parole officer, Defendant had been convicted on April 14, 2006 of Criminal Possession of Stolen Property in the1 Fourth Degree; on February 17, 1993, of two counts of Robbery in the First Degree, displaying what appeared to be a firearm, involving two separate token booth robberies, for which he received a sentence of 6 ½ to 13 years; on September 12, 1989 of Attempted Criminal Possession of a Controlled Substance in the Fourth Degree; on September 30, 1987 of Attempted Burglary in the Second Degree; and on November 15, 1985 of Attempted Robbery in the Second Degree, another case in in which a firearm was displayed. He had previously been released to parole on the 6 ½ to 13 year sentence in September 18, 2000, and his parole was revoked as a parole violator on September 28, 2001 (RA 11). 2 subsequently attempted to execute the warrant at defendant’s residence, but defendant was not home. Herlihy spoke with defendant’s girlfriend while there and left contact information. On July, 9, 2009, about one week after receiving the warrant, Det. Herlihy made another attempt to execute the warrant, again to no avail. Then, about one-half hour later, Herlihy and his partner that afternoon, another NYPD detective, received a frantic call from defendant’s girlfriend informing them that her twenty-year old son, Timothy Settles, was in defendant’s car and had texted her that defendant had a gun in it. When he received the call, the parole officer with whom Herlihy regularly worked was off duty, as he had recently finished his shift, but Herlihy was in phone contact with him. In response to the call, Herlihy and his partner, armed with the parole warrant for defendant’s arrest, went to defendant’s address and saw defendant’s car. The vehicle’s hood was warm. They entered defendant’s second-floor apartment and, upon apprehending defendant, Det. Herlihy found car keys on the floor beneath him. They subsequently searched the car and found a handgun in the passenger compartment. Defendant was indicted for Criminal Possession of a Weapon in the Second Degree, Criminal Possession of a Weapon in the Third Degree, and Unlawful Possession of Marijuana (Queens County Indictment Number 2259/09). Defendant moved to suppress the gun on Fourth Amendment grounds, and, after a hearing at which Det. Herlihy testified substantially as above, the trial court credited Det. 3 Herlihy and denied suppression both orally and in writing. The court relied on both the specific information that defendant had a gun in the car and defendant’s status as a parolee to validate the search. Defendant proceeded to trial before the Honorable Ronald D. Hollie and a jury. During jury selection, defendant asked only one question of any of the four Asian prospective jurors on the panel, and also failed to question a fifth juror who appeared Asian, but questioned every remaining non-Asian juror. Defendant then used four of his six challenges in the first round to strike the four Asian prospective jurors from the panel, and also struck the fifth prospective juror who appeared Asian, while striking only one non-Asian juror. The People challenged the strikes under Batson v. Kentucky, 476 U.S. 79 (1986), pointing out that defendant had eliminated 100% of the Asian prospective jurors, and the court found that the People had made a prima facie showing that the strikes were related to race. While giving reasons as to three prospective jurors, defendant told the court with regard to the last one that he had “nothing specific” to support that challenge, relying on the fact that he did not know anything about the juror, other than that she had a cousin who was a police officer. When the Court pressed counsel to explain what he was relying upon as the basis for his challenge, other than the fact that the prospective juror was Asian, counsel merely said, “Nothing specific. I didn’t know anything about her.” Defendant did not complain that the court had limited his time to voir dire the juror, or any other juror, and did not ask to examine the juror further. 4 Despite defendant’s claims that he knew nothing about the juror, the trial court had extensively examined this prospective juror prior to counsel’s voir dire, eliciting twenty-eight individual responses to its questions, covering both personal information about the prospective juror and her attitudes towards police, the law relevant to the trial, and the criminal justice system generally. The trial court was also aware that the prospective juror had previously assured the court that she had no pleasant or unpleasant experiences with the police that would affect her ability to be fair and impartial in the case. The court upheld defendant’s challenges to the other Asian prospective jurors, but ruled that the reason offered as to this prospective juror was pretextual. At the conclusion of the trial, defendant was convicted of second-degree criminal possession of a weapon, third-degree criminal possession of a weapon, and unlawful possession of marijuana. On December 16, 2010, defendant was sentenced as noted above. On appeal, defendant raised several claims. First, defendant contended that the hearing court erred in its determination that the arresting detective lawfully recovered the gun from defendant’s car. Second, defendant argued that the trial court erred when it granted the People’s Batson/Kern challenge, finding that defendant’s facially race-neutral reasons for striking the final Asian prospective juror pretextual. Defendant also argued that evidence of the frantic call to Det. Herlihy and his partner that brought them back to the location should not have been introduced, that the 5 prosecutor made improper comments in summation, and that counsel was ineffective for failing to object to the comments. The Appellate Division affirmed. People v. McMillan, 130 A.D.3d 651 (2d Dept. 2015). It upheld the search, noting that Det. Herlihy was a member of a joint task force with the Division of Parole tasked with executing warrants, that he was in the process of executing a parole warrant, and that he was aware that defendant had consented in writing to a search of his person and property. The court also relied on the specific information provided from a known source that defendant had just been in the car with a gun and that defendant acknowledged that the car was his. As to the trial court’s disallowance of defendant’s peremptory challenge, the court held that counsel’s explanation essentially amounted to no reason at all, and that the record provided a sufficient basis for the trial court’s finding that the strike was pretextual. The court also rejected defendant’s remaining contentions, holding that (1) his confrontation clause claim was unpreserved and the frantic call bringing the police back to defendant’s house did not have a testimonial purpose but was made to obtain an emergency response, (2) defendant’s contentions about the prosecutor’s summation were unpreserved and meritless, and (3) counsel had provided effective representation. SUMMARY OF ARGUMENT The Appellate Division correctly determined that the police acted reasonably under the Fourth Amendment in entering and conducting a limited search 6 of defendant’s car and that the trial court permissibly disallowed defendant’s peremptory challenge as pretextual. Defendant’s pro se claims are similarly unavailing. The police entry into defendant’s car without a warrant was permissible on two independent grounds. First, the police had ample cause to enter the vehicle and look for a weapon based on the information provided by defendant’s girlfriend that defendant had a gun in his car shortly before the police arrived. Under those circumstances and well-established caselaw from this Court and the Supreme Court no warrant was required to enter the vehicle due to defendant’s diminished expectation of privacy and the inherent mobility of the vehicle. See California v. Carney, 471 U.S. 386 (1985); People v. Orlando, 56 N.Y.2d 441 (1982) (search of defendant’s car parked outside his place of arrest and after the arrest was effectuated was proper where based on probable cause). Second, the search was permissible as a parole search in connection with the execution of a parole warrant. Initially, the only claim defendant preserved in this regard was one under the Fourth Amendment, as defendant, while repeatedly invoking the federal constitution, never even mentioned the state constitution, much less argued that it should be interpreted differently from the federal one. The prevailing test under the Fourth Amendment for parole searches determines the reasonableness of the search by weighing the privacy interests of the defendant as a parolee against the state’s needs in supervising parolees. See Samson v. California, 547 U.S. 843, 848 (2006). In conducting this analysis, the Supreme 7 Court has stressed the limited expectation of privacy of parolees generally and that, where parolees expressly agree to searches of their property as a condition of parole, their expectations are even further diminished. The Court has also stressed the state’s interest in close supervision of parolees, even more so than of probationers, because parolees have been convicted of serious felony crimes and present an increased risk of recidivism and hence danger to the public. Balancing these interests, the Supreme Court has upheld searches of parolees’ property by police officers based on reasonable suspicion alone, United States v. Knights, 534 U.S. 112 (2001), and, indeed, had sanctioned even entirely suspicionless searches of parolees, Samson, 547 U.S. at 857. Notably, the Supreme Court has not required proof that the individual search conducted actually advanced the specific interests of parole. Knights, 534 U.S. at 122. The balancing of these same interests here overwhelmingly supported the limited search conducted. First, defendant had a vastly reduced expectation of privacy, both as a parolee generally and because he had expressly agreed at the time of his release to a condition allowing, without limitation, the search of both his person and property. He also had a reduced expectation of privacy in the specific area actually searched, his car. Second, defendant, a five-time felony offender who had violated parole previously, had again violated parole, resulting in the issuance of the warrant and further elevating the state’s interest in protecting the public. Third, the searching officer here had a very high degree of individualized suspicion to conduct the specific search at issue: indeed, he possessed probable cause based on the 8 specific information provided by identified citizen complainants that he had a firearm in his car. Fourth, the search was limited in nature: consisting only of the passenger compartment of the vehicle. And, although not necessary to a determination of validity of the search under the Fourth Amendment, the search also advanced the interests of parole supervision, as it determined whether defendant had violated an express provision of his conditions of release, forbidding the possession of any firearm for any reason, thereby directly reflecting on his suitability for parole should he become eligible for re-release in either the near or distant future. Similarly, the interests of parole justified the search in order to investigate crimes committed while on parole. See People v Johnson, 63 N.Y.2d 888 (1984) (search of defendant’s apartment after arrest in car on parole warrant related to purposes of parole, given his four or five parole violations and suspected participation in other crimes). Nor was the fact that an NYPD Detective from the Joint Apprehension Task Force executed the parole warrant and conducted the attendant search fatal to its validity. The detective was fully authorized to execute the parole warrant under New York law, and the Supreme Court has twice authorized searches of parolees or probationers by police acting alone with less individualized suspicion than present here. See Samson, 547 U.S. at 857 (suspicionless search by police officer without parole officer); Knights, 534 U.S. at 121-22 (search based on reasonable suspicion by detective from sheriff’s department without probation officer). And while one of the provisions listed as a condition of the terms of release allowed parole officer visits 9 and searches, a separate, completely unrestricted search provision was also contained in the conditions of release. Moreover, were parole involvement required, there was ample involvement here. The record established that the detective was acting at the request of the Parole Board, that he was acting on a joint task force, together with parole officers, and that, although the parole officer with whom he regularly worked was off duty at the time the detective received the girlfriend’s frantic phone call, the detective had been working with the parole officer that same day and was still in contact with him by phone. In the absence of evidence that the police were pursuing their own independent investigation and only involved parole as a subterfuge or “stalking horse” – the exact opposite of the situation here – no impropriety occurred. Defendant’s reliance on People v. Huntley, 43 N.Y.2d 175 (1977), to undermine the validity of the search is entirely misplaced. That case involved a suspicionless “exploratory” search of defendant’s personal residence, which could only have been justified under a “special needs” rationale that requires a close connection between the need for supervision and the search – a connection that was provided in that case due to the need to investigate the defendant’s unexplained parole violations. See Huntley, 43 N.Y.2d at 181, 182-183. Here, the search was conducted on the highest degree of individualized suspicion and was reasonable under the Supreme Court’s subsequent decisions in both Knights and Samson, which examined the competing interests and totality of circumstances independent of the “special needs doctrine.” Moreover, Huntley recognized two purposes of parole, to 10 detect and prevent parole violations in order to protect the public and to assist the parolee in a proper re-integration into society. Here, the search of defendant’s automobile based on specific information that he had a gun in the car unquestionably directly supported the former as it detected a serious parole violation that created a danger to the public, and it also advanced the latter as it informed the Parole Board and the Department of Corrections of defendant’s inability to adjust to supervised release, mandating other, more restrictive correctional options for defendant. Huntley thus supports the propriety of the search here rather than undermine it. Defendant’s reliance on People v. Jackson, 46 N.Y.2d 171 (1978), and People v. Hale, 93 N.Y.2d 454 (1999), both of which preceded Knights and Samson, is similarly misplaced. In Jackson, the Court invalidated a search of a probationer that was based on an anonymous tip where there was no reason to believe defendant had violated probation. In Hale, the Court upheld a warrantless search of a probationer’s home based on reliable information he was selling drugs. Here, it was undisputed that defendant committed fourteen parole violations, a parole warrant was issued, and the police had specific information that he had a gun in his car. Neither case, then, prevented affirmance here. See also Johnson, 63 N.Y.2d at 888 (valid parole search to investigate parole violations and new crimes). Moreover, to the extent that either case could be read to suggest otherwise, they have been superceded on Fourth Amendment grounds by the Supreme Court decisions in Knights and Samson. 11 Accordingly, defendant’s status as a parolee, his consent to the search provision, and the state’s keen interest in closely supervising convicted felons, particularly those who have violated parole, authorized the minimal search in this case without a warrant. Indeed, were a warrant required here, defendant, as a parolee, would be afforded greater rights than an ordinary citizen, whose vehicle could have been searched by police on the strength of the specific information that he had a gun in his car and the automobile exception to the warrant requirement alone. Nothing in law or logic compels such an anomalous result. Similarly unavailing is defendant’s argument that the trial court erroneously disallowed his peremptory challenge which counsel described as based on “nothing specific.” During the first round of voir dire, defendant exercised four of his six peremptory challenges against Asian prospective jurors, eliminating all four Asian prospective jurors who were in the jury box, as well as another juror the court thought might be Asian. After a Batson challenge by the People, defendant gave reasons as to three of the prospective jurors, and then he stated he had “nothing specific” as to the last juror. He mentioned that he knew nothing about the juror other than that she had a cousin as a police officer, but, pressed by the court as to the race- neutral reason for the strike, his answer was to reiterate, “Nothing specific.” Defendant now alleges that the court could not reject his lack-of- knowledge excuse because it had imposed strict time limits and deprived him of an adequate opportunity to question J.Y. But defendant never made that argument in the trial court: he never complained about the time limits or that he did not have an 12 adequate opportunity to question J.Y., and he did not argue that his inability to question J.Y. caused his lack of knowledge or inability to specify a ground for the challenge. Cf. People v. Hecker, 15 N.Y.3d 625 (2010) (defendant complained that time limits prevented adequate questioning of challenged juror and moved to reopen voir dire as to that juror). Thus, defendant’s current contention is unpreserved and unreviewable here. See People v. James, 99 N.Y.2d 264 (2002). Based on the record and the arguments made below, there was ample support for the trial court’s factual finding. While counsel stated that he “knew nothing” about the prospective juror, the court had extensively examined her prior to defendant’s voir dire and, in response to a lengthy and comprehensive questionnaire, elicited twenty-eight individual responses from her on a wide variety of topics, including not only a great deal of personal information about her history and family, but also her attitudes toward police, relevant principles of law, and the criminal justice system generally. Any further “lack of knowledge” was attributable to the fact that defendant had not asked any individual questions of that juror, or indeed of any of the other Asian jurors at any point during his voir dire. This overwhelmingly suggested that he knew well in advance of his questioning that he had no need to question the Asian prospective jurors because he had no intention of allowing them to remain on the jury. Moreover, the People’s prima facie case – which this Court has recognized as a significant consideration also at the third stage – was extremely strong: defendant struck all four Asian jurors and a fifth possible Asian juror, exercising only a single challenge against a clearly non-Asian prospective juror. He 13 also allowed a non-Asian on the jury to whom he had only posed one question, and, under defendant’s current theory, “knew nothing.” Finally, and most tellingly, defendant twice repeated the actual basis for his challenge of J.Y. as “nothing specific” – not a race-neutral reason at all, but, rather an effective concession of unlawful discrimination. Surely, when counsel stated he had “nothing specific” to support the challenge, the trial court was entitled to take him at his word: he had no articulable race-neutral reason. And while defendant currently insists that counsel relied on the prospective juror’s connection to a police officer as a basis for striking the juror, the trial court could conclude otherwise. Indeed, the trial court, in order to clarify the basis for the challenge, specifically asked counsel, after his initial statement, what it was that he was relying on, other than race, as a reason to strike the juror, and counsel did not rely upon the juror’s relationship to a police officer but responded only, “Nothing specific.” Having asked counsel to clarify the basis of the strike, and counsel having limited it to a lack of knowledge and not mentioning the relationship, the trial court was justified in taking counsel at his word regarding the basis of the strike. Because this reason was either no reason at all or a false one in the context of the case, the trial court could then find it pretextual. Moreover, defendant’s reliance on People v. Hecker, 15 N.Y.3d at 625, is misplaced. First, this Court in Hecker in no sense constructed the legal rule defendant derives from that case – that a trial court cannot disallow a lack-of- knowledge excuse when the court has imposed time limits on voir dire. To the 14 contrary, rather than promulgating a bar whenever time limits exist, as defendant suggests, this Court in Hecker conducted a highly fact and evidence sensitive inquiry into the “genuine[ness]” of that defense attorney’s proffered reason supporting the challenge. Id. at 659, 660. Moreover, the facts here are dispositively different from that case. There, this Court relied on the facts that (1) the prima facie showing was weak, consisting of only two of five likely Asian jurors being struck, one after an unsuccessful cause challenge; (2) there was no pattern showing that counsel avoided questioning Asian jurors, as he did question one of the two Asian jurors at issue; (3) the time frame allowed counsel was extremely tight, consisting of 10 minutes for 18 prospective jurors; and (4) counsel specifically moved to reopen the voir dire, supporting the conclusion that his complaint was “genuine.” Here, by contrast, (1) the prima facie showing was strong, as defendant eliminated all four Asian prospective jurors, and another prospective juror who appeared Asian as well, and used five of the six challenges he exercised to do so; (2) counsel avoided questioning the four Asian jurors, or the fifth possible Asian, asking only one individual question of any of them; (3) counsel had more time than in Hecker – 15 minutes to question 14 prospective jurors – and still asked only one question of any of the four Asian jurors, and (4) counsel never complained that he did not have enough time to question the jurors, that he had wanted to question the Asian jurors more, or that he wished to reopen the voir dire to learn more about any of the Asian jurors. Indeed, Hecker is inapposite as to virtually every fact that this Court relied on in coming to its conclusion that the trial court determination lacked 15 evidentiary support. Here, the trial court, dealing with a materially different set of facts and having the advantage of seeing and hearing the attorney, reasonably found counsel’s stated reasoning to be pretextual. Defendant’s pro se arguments are also unavailing. His complaint that the introduction of a portion of his ex-girlfriend’s phone call violated his Sixth Amendment rights under the Confrontation Clause is not preserved for this Court’s review, as he never invoked the Confrontation Clause or the Sixth Amendment in the trial court. In any even, the limited portion of the call, which did not suggest that defendant was guilty of any crime, was introduced for a non-hearsay purpose, and thus fell outside the ambit of the Confrontation Clause. People v. Reynoso, 2 N.Y.3d 820 (2004). Defendant’s argument about the prosecutor’s summation is also unpreserved, as he never argued in the trial court that the prosecutor engaged in a pervasive pattern of misconduct depriving him of a fair trial and at most made general objections. People v. Griggs, __ N.Y.3d __, 2016 N.Y. Slip Op. 04655 (June 14, 2016); People v. Tonge, 93 N.Y.2d 838 (1999). And, contrary to defendant’s final contention, counsel performed effectively despite the disagreements and impediments that defendant raised by repeatedly challenging counsel on matters of strategy and tactics. Accordingly, the order of the Appellate Division should be affirmed. 16 THE MAPP HEARING2 The People’s Case Detective KEVIN HERLIHY had been working for about seven years at the Joint Apprehension Warrant Squad, to which NYPD officers and parole officers were both assigned. On the task force, the Detective worked specifically with parole officers in conducting parolee visits (A18). Part of their duties were to investigate and apprehend parole absconders (A11). On July 3, 2009, Herlihy had been out with Parole Officer Charles Russell for most of the day, but Russell’s shift had ended around noon or 1:00 p.m. (A19). Det. Herlihy nevertheless continued to be in phone contact with Parole Officer Russell after his shift had ended, and spoke with Russell that day, both before and after defendant’s arrest (A19). Herlihy’s partner at the exact time of the arrest, however, was NYPD Det. George Tsangaris (A18). At that time, the Task Force was in possession of a warrant for defendant based on fourteen violations of the terms of his parole (A8). The warrant had been issued on June 15, 2009, about two weeks earlier, but had been in possession of the squad for only about a week. The warrant, introduced into evidence at the hearing, directed “ANY PAROLE OFFICER, PEACE OFFICER OR ANY OFFICER authorized to serve criminal or civil process” to “retake[]” defendant to be “placed in detention.” (RA 1). Numbers in parentheses preceded by “A” refer to pages of the Appellant’s Appendix. Those2 preceded by “RA” refer to the Respondent’s Appendix. 17 Det. Herlihy also had in his file, at that time, the application defendant signed acknowledging the conditions of parole. This included one provision allowing parole visits and searches, and an entirely separate provision, preceding the other one, which stated in its entirety, “I fully understand that my person, residence and property are subject to search and inspection.” (A41, 42, 80). Defendant also agreed in that3 document that he would “not own, possess, or purchase any shotgun, rifle or firearm of any type without . . . written permission” (A80). Other conditions of release required defendant to maintain employment, participate in substance abuse counseling, refrain from consuming alcoholic beverages or frequenting places in which they were sold, abide by a curfew, and participate in anti-aggression counseling (A80). That morning, Det. Herlihy received a call at his office in Creedmore from an ex-girlfriend of defendant (A12). He had met the ex-girlfriend before, during a prior trip to defendant’s house, and had left contact information (A15, 23). He and his partner responded to the house armed with the warrant, but did not initially locate defendant (A12-14). They left for another location, and, as they were driving down Jamaica Avenue, they received a frantic call from the same ex-girlfriend informing them that her son was in defendant’s car with him and was texting her, telling her that defendant had a gun in the car. Det. Herlihy could hear the woman speaking frantically on the phone with his partner (A15-16). The form was introduced as People’s Exhibit 3 at the hearing (A43, 80).3 18 After notifying their supervisor, they returned to defendant’s house immediately, and Det. Herlihy saw the car that they had been looking for, a Buick Park Avenue that was registered to defendant (A28, A16). When they arrived, the detective felt the front of the car and it was warm (A16, 26). Detectives Herlihy and Tsangaris then began knocking on the door of the apartment building. The ex-girlfriend’s son came downstairs and let them into the building (A16-17, 31). The detectives went up to the second floor apartment and placed defendant on the floor and handcuffed him. Defendant did not have a gun on him (A38). When the defendant stood up, there was a set of keys underneath him, consisting of car and house keys (A18-19, 31, 33). After Det. Herlihy left the building, the landlord asked the detective to move defendant’s car because it was blocking his driveway (A19, 34, 35). Defendant stated that the car was his (A21). The car was not in a legal spot (A20, 35). The detective asked Settles, the ex-girlfriend’s son, to move the car, but he refused to do so (A19, 34). Therefore, Det. Herlihy got in to move it to a secure and legal location (A20). When Det. Herlihy entered the car, he was aware of both the report that defendant had a gun in the car and that no gun had been found on defendant. For his own safety, he sought to secure any weapon before moving the vehicle (A38). Before getting into the driver’s seat, the detective looked underneath it (A37-38). When he opened the rear driver’s side door, he saw a backpack in the rear seat, which was open (A37-38). Det. Herlihy looked inside and saw the butt of a gun (A20, 38, 39). After 19 he moved and parked the car in a legal spot, Det. Herlihy gave defendant’s car keys to the son of defendant’s ex-girlfriend (A20). Det. Herlihy also searched defendant when they arrived at the 105th Precinct. The detective recovered two plastic bags of marijuana that were secreted in a rubber-banded bunch of defendant’s hair (A: 22). Defendant’s Case TIMOTHY SETTLES, the ex-girlfriend’s son, testified for defendant. At the time of the hearing, he was twenty-one years old and had known defendant since he was seven. Mr. Settles never knew his father and had lived with defendant (A: 47, 64-65, 68). Settles confirmed that he had opened the door for the officers and that the building landlord was present, but denied hearing the detectives speak with him (A55-59). The detectives asked Settles to move defendant’s car but he refused to do so (A59, 66). Settles also testified that he had been present in the apartment with defendant for two or three hours before the detectives arrived (A49). He admitted that he had spoken with his mother before the detectives got there but denied text- messaging her (A54). He stated that defendant’s car was not blocking a driveway and claimed that the officers had asked for permission to search the car, but he refused to give it (A59). He said that he had seen the officers open all the car doors and the trunk and search the car for about fifteen minutes and ultimately recover a plastic bag, but he never saw them start or move the car. After they recovered the bag they gave Settles the keys (A60). 20 At the hearing, Settles admitted that he had repeatedly lied to the police when they initially arrived and he had told them that defendant was not in the house (A62). Settles explained that he would not put himself in a position where he knew that he was with a gun. He was then on probation through 2018 for a felony assault in Georgia (A67). Closing Arguments At the close of the People’s case, the People requested that the court allow Detective Herlihy’s partner to testify, as well as defendant’s parole officer. The court denied the application (A46-47). At the close of defendant’s case, defendant asked for a continuance to bring defendant’s landlord, who defendant indicated would testify that he did not request that the police move defendant’s car. The court denied the application (A71). In his closing argument, defendant conceded that Det. Herlihy had “an absolute right to search the premises not only incident to the arrest for his safety but to see what was there at the time”. But, invoking the Fourth Amendment, defendant argued that the detective had insufficient information about the gun to have a legal basis to search the car and that the detective’s testimony was “concocted” to establish “probable cause” (A72-73). Defendant argued that the parole officer would have had a right to search the car but the detectives did not (A73-74). The People argued two grounds to deny suppression. First, the prosecutor argued that the search was a valid parole search, as defendant had violated parole, had agreed to searches of his person and property, and Det. Herlihy was 21 “acting alongside parole,” and was in contact with the parole officer (A74). Second, the People argued that the detectives had reliable information from a known identified person, the defendant’s ex-girlfriend, that defendant had a gun in his car (A75). The Court’s Decision After the closing arguments, the court, in denying defendant’s application to call the landlord, explained that, regardless of its findings on whether the parole warrant gave the detectives the right to search the car, if the court were to find that the detective was credible in his testimony concerning being called by Settles’s mother, the call would provide sufficient cause by itself to justify the search of the automobile. The court then denied defendant’s motion to suppress (A76).4 In a subsequent written decision, the court found that Det. Herlihy received a call from defendant’s ex-girlfriend, who was frantic, and informed the detective that her son had texted her that he was in a car with defendant and that defendant had a gun. While apprehending defendant pursuant to the parole warrant, the detective found defendant’s car keys (A82). The court further found that the landlord had requested that defendant’s vehicle be moved because it was blocking a driveway, and that the ex-girlfriend’s son was near the car but refused to move it. While the trial court did not rely on the landlord’s request as a ground for entering the vehicle, that4 request would have provided ample cause for the police to enter and move the car. Under New York law, police officers are authorized to move an unattended vehicle when it constitutes a danger or impediment to traffic, or is any place where stopping, standing, or parking is prohibited. See V.T.L.§ 1204(b); People v. Sullivan, 29 N.Y.2d 69 (1971). Here, Det. Herlihy testified that the car was not in a legal spot (A40). This constituted an independent reason for the police to enter the vehicle. United States v. Gemma, 818 F.3d 23, 32 (1st Cir. 2016) (entry into arrested defendant’s car permissible to retrieve cell phone for minor to contact parents under police community caretaking function). 22 When Det. Herlihy looked into the rear seat of the car, he saw an open back pack with a butt of a gun sticking out (A82). As for the court’s conclusions of law, the court observed that the Fourth Amendment only prohibits unreasonable searches and seizures, that defendant, as a parolee, agreed to permit searches of his person and property, that the Parole Board has an obligation to investigate parole violations, both for the parolee and the protection of the public, and that because of defendant’s status as a parolee, his legally cognizable expectation of privacy was substantially reduced (A82). The court concluded that parole officers must be given authority to search parolees in situations that would be impermissible if directed against ordinary citizens and that a police officer’s presence at the time of a search does not make a search unlawful (A82). Applying this law to the facts of the case, the court cited two bases justifying the detective’s recovery of the gun, first that defendant was on parole and had an active parole warrant, and second that he had been informed that there was a gun in his car (A83). JURY SELECTION At the beginning of voir dire, the court asked several questions of the jurors collectively, dealing with their qualifications to sit as jurors under the judiciary law, whether their religious and ethical beliefs would prevent them from following the law, whether they could accept the proposition that defendant had no burden to testify, and whether there was anything about the nature of the charged crimes that would make the prospective juror feel uncomfortable (A127-30). One of these 23 questions was specifically addressed to juror J.Y., who assured the court she could be fair (A130). The court then explained that the jurors each had a questionnaire from which they would answer questions posed by the court. The questionnaire consisted of eighteen questions, many of which had multiple subparts (A132-139). It included personal questions about the jurors, as well as questions about their ability to be fair and impartial and their ability to follow the law as given to them. During the first round, the court put fourteen jurors in the box, and when any of these jurors was excused on consent, new jurors were called to fill their seats. The fourteen jurors eventually voir dired by counsel after this process was complete included four Asian jurors, D.Y., J.Y., K.C., and C.C. 5 J.Y., the prospective juror who was later the subject of the disallowed challenge, explained that she had been born in Hong Kong, but was now living in Flushing, in the same residence that she had been in for ten years. She had lived in the United States for twelve years. A single woman, she had a bachelor’s degree in science and was currently unemployed. She had just graduated (A168-70). J.Y. had never served on a grand jury on either the state or federal level, nor had she served on a state or federal trial jury. None of her relatives or close6 friends had been victims of crimes. She had never witnessed a crime. Neither she nor her relatives and close friends had ever been accused or convicted of a crime. And While this prospective juror’s actual first name appears to have begun with a “J”, he identified his5 first name during voir dire as Daniel (A132). He is referred to as D.Y. here to distiguish him from J.Y., the juror as to whom defendant’s challenge was disallowed. While the prospective juror gave her answers, the precise questions to which she was responding6 in the questionnaire were read in connection with the voir dire of the first juror, D.Y. (A132-39). 24 neither she nor her relatives or close friends had ever testified in a civil or criminal proceeding (A168-70). She had a cousin who was a police officer. But she knew no one else who worked in a law enforcement agency, or a law firm, or who had legal training, or who had worked on behalf of a defendant. She had never had a pleasant or unpleasant experience with the police that would affect her ability to be fair and impartial in this case (A168-70). J.Y. understood that the indictment was only an accusation, and would be able to follow the law. She understood that defendant was innocent until proven guilty beyond a reasonable doubt. She acknowledged that, if she voted at that time, she would have to find defendant innocent because she had heard no evidence against him. The prosecution, she knew, had the burden to prove that defendant was guilty beyond a reasonable doubt. And she affirmed that there was no reason why she could not be fair and impartial in this case (A168-70). J.Y. also assured the People that she would speak up and participate in deliberations even if members of the panel were older and more experienced than she was (A286-87). During defendant’s voir dire of the panel, for which he was allotted fifteen minutes, defendant asked over fifty questions, but only one question was individually directed to any of the four Asian prospective jurors. Defendant asked K.C. if she could accept that the prosecution has the burden to establish guilt beyond a reasonable doubt, and she assured him that she could (A300). Defendant asked nothing else of K.C., and nothing of any of the other Asian jurors. He similarly asked 25 nothing of Z.M., who the court thought may have been Asian based on his appearance, but who, the prosecutor later clarified, was an “islander” (A313). Defendant, however, asked questions of every other, non-Asian prospective juror. After one of the fourteen on the panel affirmed that he would not be able to accept the absence of an affirmative defense by defendant, the court dismissed the prospective juror on consent (A311). The People and defendant indicated that they had no for-cause challenges. The People then declined to exercise any peremptory challenges to any of the jurors (A311). Defendant then exercised his peremptory challenges against six prospective jurors, including all four Asians and Z.M., the juror who the court thought might have been Asian. The only other juror struck, I.G., was a rabbi who had been asked one question by defendant (A311-13). The People alerted the court that defendant had just moved to strike every Asian on the jury panel. The trial court concurred that each of these jurors was Asian and asked defense counsel if he had a race-neutral reason for the strikes (A312- 13). Defendant did not dispute the existence of a prima facie case and proceeded to provide reasons for the four challenged strikes. Counsel told the court that he had struck D.Y. because he had prior civil jury service, that K.C. was too young, and that C.C. had a background in theology. As to J.Y., counsel stated, “There is nothing specific,” claiming that he had “no information” about her other than that she had a cousin who was a police officer. The court asked whether 26 defendant had any reason supporting the challenge “other than the fact that she is Asian?” Defendant responded only, “There is nothing specific. I don’t know anything about her”(A313-14). The People argued that defendant’s strike of J.Y. was clearly pretextual, because its basis was defendant’s own decision not to question her that resulted in him knowing nothing specific about her other than the bare fact that she had a cousin who was a police officer (A314). The People argued that defendant’s argument regarding C.C. was also pretextual because defendant had not moved to strike another theologian on the panel, Mr. Marino (A314). Defendant, the People pointed out, had also left D.T., a young black male, and D.I., on the panel even though each was as young as K.C. (A314, 315). The Court then ruled defendant’s motion to strike J.Y. was pretextual (A315). The court accepted the race-neutral basis for the strikes of the three other Asian jurors (A315). 27 POINT ONE IT WAS REASONABLE UNDER THE FOURTH AMENDMENT FOR THE POLICE TO SEARCH DEFENDANT’S CAR WHEN, IN THE COURSE OF EXECUTING A WARRANT AT THE REQUEST OF PAROLE, THEY OBTAINED SPECIFIC RELIABLE INFORMATION THAT HE HAD A GUN IN THE CAR. The police had at least two independent grounds for entering and briefly searching defendant’s car, resulting in the recovery of the gun. First, Det. Herlihy and his partner had specific information from an identified citizen that defendant had recently possessed a firearm in his car, and, after concluding that defendant had no weapon on his person, could lawfully search the car, in which defendant had a reduced expectation of privacy, regardless of defendant’s status as a parolee. Moreover, under both Supreme Court and this Court’s precedent, it made no difference that the car was parked immediately outside the location of arrest rather than stopped by the police on the street or highway. Second, the search was reasonable as a parole search, under the totality of circumstances. Balancing defendant’s interests against those of the state, defendant had a significantly reduced expectation of privacy as he was not only a closely supervised parolee, but had agreed to an unrestricted search provision as a condition of parole, and the state’s interest in determining whether defendant possessed a firearm in contravention of the conditions of parole was extremely high, particularly given defendant’s parole violations and his prior history. Moreover, the police had a very high degree of individualized suspicion justifying the search, based 28 on the specific information provided that he had a gun in his car, and the search producing the weapon, limited to the passenger compartment of the vehicle, was relatively non-intrusive. Defendant’s argument that the People did not show that the search had a parole-related purpose and that it could not have had any because it was conducted by police instead of a parole officer is unavailing. A search of a parolee need not have a parole-related purpose or be conducted by a parole officer under well established Fourth Amendment jurisprudence, see United States v. Knights, 534 U.S. 112 (2001), and because defendant did not raise his claim under any provision of state law, that precedent is controlling. Moreover, any such requirement would have been satisfied in this case. Det. Herlihy was acting at the instance of the Division of Parole, who had issued a warrant for defendant’s arrest only two weeks earlier, he worked on a daily basis with parole officers on a joint task force to visit and apprehend parole absconders, and he had specific authority under the terms of the warrant to execute it. In addition, the search did in fact advance the interests of parole, as determining whether defendant had violated the specific no-firearm condition of parole was relevant both to defendant’s performance on parole and the safety and protection of the public, two responsibilities this Court has recognized are part of every parole officer’s duties. See People v Johnson, 63 N.Y.2d 888 (1984) (search of defendant’s apartment after arrest on parole warrant related to purposes of parole, given his four or five parole violations and suspected participation in other crimes). 29 Moreover, if this Court were to hold that the warrantless search of defendant’s car were improper because it failed to reflect an adequate parole purpose, it would be affording more rights to defendant as a parolee than an ordinary citizen would have. The specific information that defendant had a gun in his car shortly before the arrest and search provided ample ground for the entry into the car, and invalidating the search because the police lacked a parole-related purpose would preclude the police from conducting a search they could perform of a car belonging to an ordinary member of the public. As parolees have fewer, not more, rights than ordinary citizens, no such outcome should be condoned. A. Defendant Preserved Only a Fourth Amendment Claim at The Hearing. Initially, defendant preserved only a Fourth Amendment claim, not any claim under state law, in making his motion to suppress. Indeed, while specifically relying on the Fourth Amendment, he never relied on the state constitution, or even so much as mentioned it in his motion papers or at any point during the hearing. Similarly, the prosecutor and the hearing court made no reference to it. Thus, defendant’s current argument that this Court should both rely on, and separately interpret, the state constitution, if he cannot prevail under Fourth Amendment precedent (Def. Br. at 30), is wholly unpreserved and unreviewable here. This Court, with limited exceptions, is empowered to consider only questions of law. People v. Graham, 25 N.Y.3d 994, 996 (2015). As relevant here, CPL § 470.05(2) provides that a question of law regarding a ruling is presented in a criminal proceeding “when a protest thereto was registered, by the party claiming 30 error, at [a] time . . . when the court had an opportunity of effectively changing the same . . . or if in response to a protest by a party, the court expressly decided the question raised on appeal.” Id. The rule specifically applies to theories of relief at a suppression hearing. People v. Panton, __ N.Y.3d __ ; 2016 N.Y. Slip Op. 05181; People v. Wallace, 27 N.Y.3d 1037 (2016). For example, this Court has held that an argument that the People lacked probable cause to make an arrest does not allow review in this Court of the question of whether a particular search could be undertaken as a search incident to that arrest. People v. Miranda, 27 N.Y.3d 931 (2016). Moreover, where a defendant relies on an “express” ruling of a court to preserve an issue, the issue on appeal must be the same specific issue ruled on below. Miranda, 27 N.Y.3d at 932-33. The same applies where the defendant raises an issue under state law, but omits mention of the federal constitution, and vice versa. See People v. Kello, 96 N.Y.2d 740, 743 (2001) (hearsay objection did not preserve confrontation clause issue). Here, in bringing his motion to suppress, defendant only cited the Fourth Amendment. In making his arguments for suppression at the close of the suppression hearing, defendant specifically referenced the Fourth Amendment twice (A72). He7 did not reference the state constitution or any other provision of state law, either during that argument or at any other point during the hearing. Similarly, in his Counsel argued "it is my understanding of case law, Judge, that although an individual is on parole,7 he does not, he does not waive all of his Fourth Amendment constitutional rights and that a search of a parolee's private property, residence or car still has to have some reasonably related circumstance to what's taking place at the time.” (A72). Similarly counsel argued that Det. Herlihy "concocted a scenario in order to establish a further probable cause or reasonably related conduct to eat at Mr. McMillan's Fourth Amendment privilege that he would otherwise have in the privacy of his automobile." Id. 31 motion papers, defendant did not mention the state constitution or statute, and indeed made no reference to the law he was relying on at all. Thus, defendant never informed the trial court that he wished to rely on state law in advancing his claim. Nor did the hearing court discuss or cite the state constitution during the hearing or in its decision. Indeed, it relied heavily on federal precedent for its ultimate determination (A82). And, even if it had relied on the state constitution, it would not have been “in response to a protest by a party,” as defendant did not raise the state constitution, and the prosecutor too relied on the Fourth Amendment (A3). Moreover, the failure to raise the issue prejudiced the People and the hearing court, as the question of whether this Court should extend greater protections under the state constitution than under the federal one is complex, and neither the court nor the People had any opportunity to address any of the attendant considerations. Ordinarily, this question requires a retrospective inquiry into the history of the protections afforded by this Court, the genesis of and rationale for the Supreme Court ruling, whether that rationale finds support in this Court’s cases, and whether policy considerations support one rule over the other. See, e.g., People v. Vilardi, 76 N.Y.2d 67, 73-77 (1990) (considering these factors); People v. Alvarez, 70 N.Y.2d 375, 378 (1987) (“we must undertake a ‘noninterpretive’ analysis, proceeding from ‘a judicial perception of sound policy, justice and fundamental fairness’); People v. P.J. Video, Inc., 68 N.Y.2d 296, 303 (1986) (same). The People had no opportunity to address these questions or cite or elicit evidence with regard to any of the policy questions involved, especially as they apply specifically in New 32 York, see, e.g., Samson, 547 U.S. at 854 (citing California recidivism rates for parolees), nor did the hearing court have the opportunity to consider any of these issues. Because defendant failed to even mention the state constitution in the hearing court or his suppression papers – much less argue, as he does now, that the state constitution should be interpreted differently than the federal (Def. Br. at 30) – and because the trial court never decided that issue, this Court may not now review any contention of defendant under the state constitution or other provision of state law. B. The Search Was Authorized under the Fourth Amendment Based on the Specific Information That Defendant Had a Gun in His Car, Regardless of His Status as a Parolee The police had ample ground to search defendant’s car in this case quite apart from whether he was a parolee. Before the police entered defendant’s car, they knew that an identified citizen, defendant’s ex-girlfriend, had phoned the arresting officer’s partner and told him, frantically, that defendant was in his car with her son and that the son had texted her that defendant had a gun with him at that time. When they arrived at the defendant’s house, they confirmed that the hood of the car was warm, corroborating the claim of recent use, and got confirmation from defendant himself that the Buick Park Avenue belonged to him. They also knew that defendant, having been arrested moments earlier, had no weapon on him at that time. This provided probable cause to believe that the firearm was in defendant’s car. Based on this information, and well established precedent allowing the search of vehicles based 33 on probable cause without a warrant, Det. Herlihy had ample ground to search defendant’s car. See, e.g., California v. Carney, 471 U.S. 386, 391-92 (1985) (search of parked mobile home without a warrant); People v. Orlando, 56 N.Y.2d 441, 446 (1982) (search of defendant’s parked car based on probable cause). The Supreme Court has long held that, under the Fourth Amendment, where the police possess probable cause to believe a vehicle contains contraband, they may search that vehicle without a warrant. United States v. Ross, 456 U.S. 798 (1982); Carroll v. United States, 267 U.S. 132 (1925). Two justifications have been offered for the doctrine, which even at the time of the passage of the Fourth Amendment was recognized as to other modes of transportation, such as ships and wagons. Ross, 456 U.S. at 805. First, the inherent mobility of the vehicle does not lend itself to delays in order to obtain warrants. Indeed, in contrast to a fixed location, such as a house, an item that is a mode of transportation in itself may quickly be moved or disappear. Nor does the ability to seize the object and then obtain a warrant defeat the mobility argument. Ross, 456 U.S. at 807 n.8 (“Subsequent cases make clear that the decision in Carroll was not based on the fact that the only course available to the police was an immediate search. . . . The Court also has held that if an immediate search on the street is permissible without a warrant, a search soon thereafter at the police station is permissible if the vehicle is impounded. . . . These decisions are based on the practicalities of the situations presented and a realistic appraisal of the relatively minor protection that a contrary rule would provide for privacy interests.”); Chambers v. Maroney, 399 U.S. 42 (1970) 34 (“For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment”; search at stationhouse after impoundment proper under automobile exception). The second rationale is that citizens have a reduced expectation of privacy in a vehicle. Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (“More recent cases provide a further justification: the individual's reduced expectation of privacy in an automobile, owing to its pervasive regulation.”); Carney, 471 U.S. at 391-92 (“Even in cases where an automobile was not immediately mobile, the lesser expectation of privacy resulting from its use as a readily mobile vehicle justified application of the vehicular exception, even when enclosed ‘repository’ areas have been involved, we have concluded that the lesser expectations of privacy warrant application of the exception”). These reduced expectations of privacy derive not from the fact that the area to be searched is in plain view, but from the pervasive regulation of vehicles capable of traveling on the public highways. Carney, 471 U.S. at 392. Under this rationale too, the People need not show any exigency that prevented them from securing the car and getting a warrant. Maryland v. Dyson, 527 U.S. 465, 467 (1999) (automobile exception does not have a separate exigency requirement); Labron, 518 U.S. at 938 (no showing of exigency required). “[T]he pervasive schemes of regulation, which necessarily lead to reduced expectations of 35 privacy, and the exigencies attendant to ready mobility justify searches without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met.” Carney, 471 U.S. at 392. The warrant exception for automobiles applies even if the vehicle in question is parked. “When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes – temporary or otherwise – the two justifications for the vehicle exception come into play.” Carney, 471 U.S. at 392-93. This is because, “the vehicle is obviously readily mobile by the turn of an ignition key, if not actually moving” and because “there is a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling.” Id. (search of parked motor home). Finally, under established Supreme Court precedent, where probable cause to search the vehicle exists, a search may include containers within the car. Ross, 456 U.S. at 799-80. In the end, the rule is simply stated and categorical. “If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more.” Labron, 518 U.S. at 940. Similarly, this Court has recognized that cars are subject to search upon a showing of probable cause without the need to obtain a warrant, at least where probable cause arises upon a roughly contemporaneous arrest. People v. Blasich, 73 N.Y.2d 673, 681 (1989)("Here, where the search was reasonably close in time and 36 place to the point of arrest, we conclude that there was no requirement that the police further delay the search to obtain a warrant"). This Court has also recognized that the rule authorizes searches of containers within the vehicle. People v. Langen, 60 N.Y.2d 170 (1983) (adopting Ross). And this Court has also concluded, like the Supreme Court, that the doctrine applies even when a vehicle is parked. In People v. Orlando, 56 N.Y.2d at 441, for example, this Court upheld a search of a vehicle parked on a public street based on probable cause provided by the defendant, who was arrested inside a nearby location. Even though defendant was under arrest, and therefore completely under the control of the police, the search was authorized. Noting that this Court had upheld similar searches of automobiles stopped on public highways, this Court concluded, "A contrary result cannot be justified simply because the vehicle in one case is parked and in the other had been moving until stopped." Id. at 446; see also People v. Milerson, 51 N.Y.2d 919, 921 (1980) ("The authority of the police to search an automobile usually arises when there is probable cause to believe that it contains weapons, contraband or evidence, and there is ordinarily no requirement that the police delay their search until they obtain a warrant, even where the vehicle has been reduced to their control"); People v. Clark, 45 N.Y.2d 432, 438 (1978) (search of parked vehicle after defendant's arrest based on probable cause). To invoke this warrant exception, however, the police must establish probable cause to believe that the car contains contraband. Under the Fourth Amendment, probable cause is defined as a fair probability that a particular location 37 contains contraband or evidence of a crime. Illinois v. Gates, 462 U.S. 213, 238 (1983). As this Court has put it, “Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place.” People v. Bigelow, 66 N.Y.2d 417, 423 (1985). Under the Fourth Amendment, probable cause is judged by the totality of the circumstances. Gates, 462 U.S. at 230-31. It depends on “factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Id. at 231. It may be based on hearsay, although more than a conclusory assertion that an officer has “reliable” information is required. Id. at 239. Reliance on information provided by others does not require adherence to rigid rules or showings, such as the previously adopted Aguilar Spinelli test, id.; there need only be a substantial basis for crediting the hearsay, id. at 242. In the end, the totality of the circumstances test is a "flexible, common-sense standard." Id. at 239. Here, the police had ample evidence to form a “reasonable belief that . . . evidence of a crime may be found in a certain place,” Bigelow, 66 N.Y.2d at 423, providing probable cause to search defendant’s vehicle, which was directly outside his place of arrest. Prior to returning to defendant’s residence, the police received a frantic call from defendant’s ex-girlfriend informing them that her son was in defendant’s car with him and that her son had just texted that defendant had a gun in the car. The ex-girlfriend was an identified citizen: the police had been at the premises before and the ex-girlfriend possessed the detectives’ contact information 38 precisely because they had personally spoken with her previously (A15). She also8 informed the detectives of the source of her information, her own son, also an identified citizen. The information provided was specific, it relayed events that were9 occurring in real time, and it was based on identified, reliable sources. Moreover, the defendant’s ex-girlfriend had no doubt about the veracity of the information provided to her from her son, as she was not only concerned but “frantic” that her son was in the car with the defendant and the gun. The police too could credit the information, and, after determining that defendant did not have the gun on him, could search the car for it. See United States v. Charles, 801 F.3d 855 (7 Cir. 2015) (911 call byth identified citizen of man with a gun allowed search of vehicle defendant had recently occupied after frisk of defendant revealed he had no weapon). The circumstances of the arrest provided further support for the conclusion that the gun was in the car at the time of the search. The police confirmed that defendant’s car, a Buick Park Avenue with a specific license plate, which had not been present at the location previously, was now present and that the hood of the vehicle was warm, indicating that it had recently been driven. And, upon his arrest, defendant did not have the weapon on him, and he confirmed that the Park Avenue While the hearing record reveals that defendant may have had more than one girlfriend, Det. Herlihy8 testified that the woman on the phone had the detectives’ contact information from a prior visit to the house to locate defendant (A15). Her identity was thus known to the officers, even if her name or telephone number was not directly disclosed at the hearing. Nor should the People be saddled with any lack of clarity as to the other circumstances surrounding the prior conversations, as the People were precluded from eliciting the ex-girlfriend’s name by the hearing court (A44-45) and from calling two relevant witnesses precisely on this point (A46): Det. Herlihy’s partner, George Tsangaris, and Charles Russel, the parole officer with whom Herlihy regularly worked. The police met the son and reviewed his identification before the car search ever took place (A17,9 32-33). 39 was his car. And while the defendant may have had an opportunity to dispose of the gun elsewhere, he was nevertheless most recently seen with the gun in the car, a short time earlier, providing at the very least a “reasonable belief” that the gun could be found there. Even if the court were to review the information provided here under the stricter Aguilar Spinelli test, it would pass muster. That test requires that the informant has some basis of knowledge for the information he transmitted to the police and that the information is reliable. People v. Johnson, 66 N.Y.2d 398, 402 (1985). Where it is readily inferable that the police have spoken to an identified citizen informant, the reliability prong is established. People v. Parris, 83 N.Y.2d 342, 349-350 (1994) (“readily inferable” from record that source was identified citizen informant, who was “presumed to be personally reliable”); People v. Hetrick, 80 N.Y.2d 344, 349 (1992) (“because Katy was an identified citizen informant, and not an unnamed informant, there was a ‘built-in’ basis for crediting her reliability”). The basis of knowledge prong is satisfied when the informant has personally observed facts establishing a crime or the possession of contraband by another. Parris, 83 N.Y.2d at 347. Still further, “[t]he prosecution may satisfy its burden even with ‘double hearsay,’ or ‘hearsay-upon-hearsay,’ so long as both prongs of Aguilar–Spinelli are met at every link in the hearsay chain." People v. Ketcham, 93 N.Y.2d 416, 421 (1999); see also Parris, 83 N.Y.2d at 346-47 (“Even hearsay-upon-hearsay may be utilized to show probable cause,” citing 1 LaFave, Search and Seizure § 3.2 [d], at 40 580 [2d ed]). The same standard applies to probable cause in this regard whether or not based on a warrant. Parris, 83 N.Y.2d at 347-348 ("It is undisputed that hearsay may be used in affidavits supporting the issuance of search warrants . . . Appellant argues that long chains of hearsay are suspect . . . but the issue is not the length of the chain but rather whether both prongs of the Aguilar test are met at each level") (citations and quotation marks omitted; ellipses in original). Here, because both people involved in the hearsay chain were identified citizens, the first prong of Aguilar Spinelli was met. Moreover, the basis of knowledge as to each citizen informant was clear: the ex-girlfriend specifically identified her son as the source, and the texts from the son established that he was actually in the defendant’s car with the defendant when he revealed that defendant had a gun in the car. This provided, at the very least, a reasonable belief that the basis of knowledge was first hand information. Thus, both prongs of the Aguilar Spinelli test are satisfied here. The police thus had ample cause, viewing the evidence at the hearing under either test, to form a belief that defendant had a gun in the car. The search was thus permissible on this ground alone, regardless of whether the defendant was a parolee or an ordinary citizen.10 This issue was directly raised at the hearing and thus preserved for review. In her closing argument10 at the hearing, the prosecutor, after maintaining that defendant’s consent to search as a condition of parole was sufficient to dispose of the matter, separately pointed to the information provided by the female caller as a ground for the search (A75). Similarly, defense counsel recognized that the information provided by the ex-girlfriend provided a ground for the search, as most of the closing argument sought to convince the court that the phone call was “concocted” to fabricate “probable cause” (A72). This then prompted the prosecutor to vigorously dispute this contention and argue that the defense witness’s contrary story had been “concocted” to support the defendant, who was a father figure to the witness (A74). The prosecutor further argued that based on the information in 41 C. The Search Was Reasonable Under Supreme Court Precedent As a Parole Search, Given Defendant’s Reduced Expectation of Privacy After Agreeing to an Unrestricted Search Provision, the State’s Strong Interest in Obtaining Proof of His Parole Violation, and the High Degree of Individualized Suspicion Possessed by the Police. The search of defendant’s car was also reasonable as a parole search. The Supreme Court has made clear that the proper method of analysis for parole searches is to assess the reasonableness of the search under the totality of circumstances, weighing such factors as the parolee’s reduced expectation of privacy, particularly where a consent to search provision exists; the defendant’s heightened risk of recidivism and the state’s need to protect the public; and the level of individualized suspicion possessed by the police. Moreover, the court has held that the motive of the searching officer, whether for an investigatory or parole-related purpose, is irrelevant. Here, defendant had a vastly reduced expectation of privacy, not only as a parolee still in the custody of the Department of Corrections but due to the unrestricted search provision to which he agreed as a condition of parole. His risk of the call about the handgun, “If they wanted to smash open the door and extricate that back pack they would have had a right to do that . . . ” (A75). Thus, the veracity of the information provided during the call and whether the information was sufficient to justify the search of the car for the handgun was directly contested at the hearing. The hearing court too relied on the information provided in the call as a separate basis for its ruling. Just prior to formally denying the motion to suppress, the hearing court explained that the call from the mother provided the “nexus” to search the car, regardless of anything the landlord might testify to and even assuming that the search was not valid “by virtue of [defendant] waiving his [Fourth Amendment] rights” as a condition of parole (A76). Similarly, in the court’s written decision, the court found that the defendant’s ex-girlfriend called the detective, frantically telling them that her son was texting her that he was in defendant’s car and that a gun was in the car. In its conclusions of law, the suppression court discussed both the Fourth Amendment generally and parole searches, and in describing the basis of its denial, the suppression court relied both on the parole warrant and on the specific information provided that the defendant had a gun in his car (A83). 42 recidivism was high, as he had violated parole on fourteen grounds and was a repeat offender who had violated parole before. And the police had a very high degree of individualized suspicion – probable cause. These circumstances were more than sufficient to warrant the brief search of defendant’s car, in which he had a reduced expectation of privacy to begin with. Accordingly, the search was proper on this ground too. The search of a probationer or parolee is judged under the general reasonableness standard of the Fourth Amendment, examining the totality of circumstances. Samson, 547 U.S. at 848; Knights, 534 U.S. at 118-19. Reasonableness is determined by balancing the individual’s privacy against the promotion of legitimate governmental interests. Id. An individual’s status as a probationer or parolee informs both sides of this equation. Knights, 534 U.S. at 119; see also People v. Huntley, 43 N.Y.2d 175, 181 (1977) (“in any evaluation of the reasonableness of a particular search or seizure the fact of defendant's status as a parolee is always relevant and may be critical; what may be unreasonable with respect to an individual who is not on parole may be reasonable with respect to one who is”). On the one hand, the probationer or parolee has, due to his or her commission of a crime and conviction, given up the absolute liberty to which ordinary citizens are entitled. Knights, 534 U.S at 119. Parolees, for example, serve parole as a substitute for prison, Samson, 547 U.S. at 850, and, even though on parole, are still considered in the custody of the Department of Corrections and 43 Community Service, which houses them while incarcerated. They are also subject11 to re-incarceration to serve the remainder of their sentences on less than the proof required for conviction. See People ex rel. Matthews v. New York State Div. of Parole, 58 N.Y.2d 196, 202 (1983) (preponderance of the evidence); see also People ex rel. McGee v. Walters, 62 N.Y.2d 317, 319 (1984) (hearsay admissible on showing of good cause). Indeed, because parolees are still serving out incarceratory sentences, they generally enjoy even less of the average citizen’s absolute liberty than probationers. See Samson, 547 U.S. at 850. Similarly, probationers and parolees have a reduced expectation of privacy, particularly where an express search condition in incorporated in the terms of their release. While a probationer has a generally reduced expectation of privacy due the acknowledged restrictions on their freedom, parolees have “fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.” Id. And where a defendant is expressly informed of and signs an order submitting to a search condition, his or her expectations of privacy are even further reduced. Knights, 534 U.S. 119-120. This is all the more so for a parolee, who, signing a general search provision, may “not [even] have an expectation of privacy under the Fourth Amendment that society would recognize as legitimate.” Samson, 547 US. at 852. “Persons presumptively released, paroled, conditionally released or released to post-release11 supervision from an institution under the jurisdiction of the department . . . shall, while on presumptive release, parole, conditional release or post-release supervision, be in the legal custody of the department until expiration of the maximum term or period of sentence, or expiration of the period of supervision, including any period of post-release supervision, or return to imprisonment in the custody of the department, as the case may be.” Exec. Law § 259-i. 44 On the governmental interest side of the ledger, the very assumption of institutions like probation and parole is that he or she “is more likely than the ordinary citizen to violate the law.” Knights, 534 U.S. at 120 (quotation marks and citation omitted). Parolees, usually convicted of serious felonies, are even more likely to commit future offenses. Samson, 547 U.S. at 853; United States v. Cardona, 903 F.2d 60, 68 (1st Cir. 1990) (“parole caters, by and large, to a more hardened group of offenders, punished more severely for more imposing crimes”; citing cases). Parolees require intense supervision, as most are not prepared to handle the pressures of reintegration. Samson, 547 U.S. at 854-55. The level of individualized suspicion present before a search is conducted is also, of course, relevant to the analysis. In United States v. Knights, 534 U.S. at 119, the Supreme Court held that, balancing the interests described above, the police may search a probationer based on a mere reasonable suspicion. The Court held, “When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is reasonable.” Id. at 121. The Court also held, “The same circumstances that lead us to conclude that reasonable suspicion is constitutionally sufficient also render a warrant requirement unnecessary.” Id. The Court went even a step further as to parolees in Samson v. California, 547 U.S. at 843. Balancing the further reduced expectations of privacy of a parolee, the Court held, “we conclude that the Fourth Amendment does not prohibit a police officer from conducting a 45 suspicionless search of a parolee,” at least so long as the searches are not “arbitrary, capricious, or harassing.” Id. at 856-57. Here, the balance of interest overwhelmingly support the reasonableness of the search conducted, under the totality of circumstances. First, defendant had a significantly diminished expectation of privacy. Defendant was a parolee, having been convicted of multiple prior felonies and serving an indeterminate sentence at the time of his release, a fact that reduced his expectations beyond those of an ordinary probationer. Defendant’s expectation of privacy was further reduced when he signed an unrestricted search provision. As part of his release, defendant signed a “Certificate of Release to Parole Supervision,” introduced into evidence at the hearing (A80), that contained not one but two separate search provisions. While one, identified by defendant (Def. Br. At 29), pertained solely to visits by his parole officer, a separate provision provided for unrestricted searches of defendant’s person, residence and property. In that provision, defendant acknowledged, “I fully understand that my person, residence and property are subject to search and inspection.” This second, independent search provision, not limited to parole officers or to any specific purpose, necessarily served to reinforce for defendant that his personal privacy was subject to intrusion well beyond that of an ordinary citizen, thus significantly lowering his expectations of privacy upon his release. See Knights, 534 U.S. at 119-20; Samson, 547 U.S. at 852. 46 Other conditions of release also established that defendant was to be closely supervised, and necessarily impressed on him the limited nature of his liberty upon release. These included agreements to abide by curfew provisions, not to consume alcohol, to participate in substance abuse counseling and anti- aggression/anti-violence counseling, and to submit to substance abuse testing (A80). The Certificate also included a provision banning him from possessing any firearm for any reason, without the specific written consent of his parole officer. Each of these provided additional evidence that defendant understood that he did not enjoy the privacy of an ordinary citizen, but was to be tightly monitored during his reintegration into society. Defendant was also aware, at the time the search was conducted, that he had violated the conditions of parole; in fact, he had done so no less than fourteen separate times. He did not, then, even have the ordinary expectations of a parolee leading a law and parole-condition abiding life. Indeed, he must have understood12 that his conduct would provoke a response, and that response was likely to include searches of his person, property or residence. This reduced his expectations well beyond those of even the parolee in Samson, who had no parole warrant or outstanding violations. Second, the state’s interest in investigating parole violations and preventing further harm to the public was also great. Defendant had been serving an Defendant’s violations in fact included the failure to remain in a drug program, the failure to report12 to his parole officer, and the failure to abide by curfew restrictions (RA 21-RA 21C). 47 indeterminate sentence on a felony at the time of his release. The concern about his13 future conduct was also heightened by defendant’s many violations of parole. Indeed, by his own conduct during the period of release violating parole no less than fourteen times, defendant had shown beyond any doubt that he was “thoroughly unreliable.” See Huntley, 43 N.Y.2d at 181-182 (defendant’s demonstration that he was unreliable by violating parole justified, upon his arrest on a warrant, a “thorough, exploratory search of his apartment without a search warrant”). The officers who executed the warrant here were entitled to take that heightened concern and the legitimate interest of the state into account as well. Third, the level of individualized suspicion that the police possessed was extremely high. Unlike the suspicionless search in Samson and the search based on reasonable suspicion in Knights, the police here had probable cause to believe that a search of the car would reveal a weapon, for all the reasons enumerated above. This was the highest level of proof that is required in any circumstance under the Fourth Amendment, much less when a parolee’s more diminished expecations are at issue. Fourth, the actual intrusion here was limited in nature. Rather than a “thorough exploratory search of [defendant’s] apartment,” which this Court upheld in Huntley upon the execution of a parole warrant, see Huntley, 43 N.Y.2d at 180, the search here was of defendant’s automobile, in which he already had a reduced expectation of privacy. And even the police search of the car was limited, as it was Defendant had in fact been convicted of five prior felonies, and had violated parole before (RA 6-13 19). Some of these involved the use of a firearm (RA 10-18), undoubtedly heightening the officers’ concerns from a public safety perspective. 48 confined solely to the passenger compartment of the vehicle, and focused primarily on the area of the driver’s seat, the most likely place to find a weapon. Consistent14 with this purpose, while protecting his own safety from a potentially unsecured firearm, he looked only under the front seat and in the back seat, where he found a backpack with the butt of a gun sticking out of it. The search was thus limited in scope, only done as necessary to achieve a limited purpose, and in no sense either a “thorough” or “exploratory” endeavor to find some unknown or undisclosed form of contraband. Taken together, these circumstances unquestionably allowed the search conducted. Indeed, the search was perfectly permissible under the Fourth Amendment applying either the rule enunciated in Knights or the one fashioned in Samson. Knights, 534 U.S. at 121 (“When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrsion on the probationer’s significantly diminished privacy interests is reasonable.”); Samson, 547 U.S. at 857 (where defendant signed unrestricted search provision, Court held “the Fourth Amendment does not prohibit a police officer form conducting a suspicionless search of a parolee”). This is true even without the high degree of individualized suspicion present here, as those cases authorized searches based on far less suspicion. In fact, Det. Herlihy testified that he entered the car only because the landlord insisted that he move14 it, and Settles would not do it. The detective’s subjective motivation, of course, is not relevant, so long as the objective facts and circumstances allow a search. See Knights, 534 U.S. at 122; Whren v. United States, 517 U.S. 806, 813 (1996); People v. Robinson, 97 N.Y.2d 341, 349 (2001). Here, the objective circumstances fully authorized the search under both Knights and Samson. 49 Indeed, in Samson, there was no individualized suspicion at all. Because the circumstances here are far stronger than those in either Knights or Samson, the Fourth Amendment did not prohibit the search. D. Under the Fourth Amendment, the People Were Not Required to Show That the Police Had a Parole-Related, as Opposed to an Investigatory, Purpose, and the Execution of the Search by a Police Officer, Rather than a Parole Officer, Was Constitutionally Insignificant. Despite the Supreme Court’s clear precedent and the even more compelling facts here, defendant argues that the search of a parolee must be related to one of the purposes of parole, and that no such relationship could be found here because the police, and not defendant’s parole officer, conducted the search. But the Supreme Court in Knights specifically held that the showing defendant would require is unnecessary to establish a valid parole or probation search under the Fourth Amendment, and in both Knights and Samson the searches were conducted exclusively by police. Moreover, if such a purpose or relationship were required, it was present here: the police were acting at the behest of parole, who had independently issued a warrant; the search provided critical information about defendant’s performance on parole, including his ability to observe the specific condition of parole regarding firearms and to lead a law-abiding life; and the police were operating on a joint task force with parole officers, with whom they regularly worked and were in contact with by phone on the day of the search, both before and after the search was conducted. See People v. Johnson, 63 N.Y.2d at 890 (suppression court properly found a parole purpose to search of home, after 50 defendant’s arrest on parole warrant, in order to investigate parole violations and information about new possible crimes). In addition, defendant’s privacy interests and the intrusion were the same whether the search was conducted by the police or the police waited for a parole officer to return. In the absence of even the slightest evidence that the police had used parole as a subterfuge or “stalking horse,” no realistic public policy goal would be served by defendant’s very narrow rule. For many of these same reasons, an affirmance here will not lead to the widespread, suspicionless searches that defendant alleges: all this Court needs to conclude here is that the Fourth Amendment permits police officers to execute parole warrants and conduct immediately related searches, a proposition that could not be clearer from the Supreme Court precedent. Still further, People v. Huntley, 43 N.Y.2d at175, and People v. Jackson, 46 N.Y.2d at 171, upon which defendant so heavily relies, do not require a different result. Huntley upholds a full exploratory search without a showing that evidence of a crime or parole violation would be found in defendant’s premises, and identifies one of the purposes of parole to be the protection of the public from parole violators, a purpose that the search here unquestionably served. Jackson involved a summary search based on an anonymous tip, without any consent to search provision. And to the extent dicta in these cases could be read to limit the type of search here, it has been superceded in the Fourth Amendment context by the Supreme Court’s two later decisions in Knights and Samson. Indeed, the Supreme Court’s decisions in Knights and Samson disposes of virtually all of defendant’s arguments that the search was invalid because unrelated 51 to the purposes of parole. In Knights, 547 U.S. at 112, the Supreme Court dealt directly with the issue of whether the search of a probationer requires a showing of a probation-related purpose or whether an investigatory purpose is permissible. In that case, the lower courts had held that a search of a probationer’s apartment by a sheriff’s deputy based on reasonable suspicion was invalid because it was for investigatory rather than “probationary” purposes, and the Supreme Court defined the question before it as “whether the Fourth Amendment limits searches pursuant to this probation condition to those with a probationary purpose.” Id. At 116. The Supreme Court held that the Fourth Amendment has no such requirement, upholding the search on the basis of a general reasonableness analysis weighing the diminished privacy interests of defendant as a probationer who had signed a consent to search provision and the heightened government interests in detecting and preventing new crimes by a probationer. The Court observed that “[w]ith the limited exception of some special needs and administrative search cases, we have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers.” Id. at 122 (citations and quotation marks omitted). The Court applied that rule to the facts before it: “Because our holding rests on ordinary Fourth Amendment analysis that considers all the circumstances of a search, there is no basis for examining official purpose.” Id. The Court also distinguished its prior decision in Griffin v. Wisconsin, 483 U.S. 868 (1987), where no consent to search form had been signed but the Court nevertheless upheld the search because it was related to the purposes of probation. 52 First, the Court criticized defendant’s reliance on that case as founded on “dubious logic – that an opinion upholding the constitutionality of a particular search implicitly holds unconstitutional any search that is not like it.” Knights, 543 U.S. at 117. The Court observed that its “special needs” holding in Griffin made it unnecessary to consider the more general issue it faced in Knights, whether the search was reasonable under the general Fourth Amendment balancing test. In Knights, it considered that issue, finding it unnecessary to examine the purpose of the search or the motivation of the searching officer. See Helphenstine v. Commonwealth, 423 S.W.3d 708, 716 (Ky. 2014) (“In United States v. Knights, the Supreme Court held that there was no basis for examining official purpose,” and thus there was no need in the case before the Kentucky Supreme Court to “engage in a subjective examination of the official purpose” behind a parole search). In Samson, the Supreme Court applied the same Fourth Amendment balancing test to determine the validity of a search of a parolee. In that case, a police officer who was aware that defendant was on parole stopped him and, although determining that no parole warrant existed for his arrest, the officer nevertheless conducted a search. The Supreme Court upheld the search, regardless of its motivation, observing that parolees had lesser expectations of privacy and posed greater risks to the safety of the public than probationers, and that the Fourth Amendment approved the search regardless of the officer’s motivation. Defendant’s argument here cannot survive either the rulings or the analysis in these Supreme Court decisions. As in Knights, defendant insists that the 53 purpose of the search is dispositive, alleging that it could not have been for a purpose related to parole. But Knights squarely held that official purpose is irrelevant if the search passes muster under a general Fourth Amendment analysis balancing the interests at stake. 534 U.S at 122. Here, those interests unquestionably favor the state, even more so than in Knights and Samson: Detective Herlihy had probable cause to search the defendant’s car, greater individualized suspicion than in either Knights or Samson; defendant had a diminished expectation of privacy as a parolee, even more so than the probationer in Knights, and had a reduced expectation of privacy in his car, as compared to the defendant’s apartment in Knights or the defendant’s person in Samson; and the danger presented by defendant, who had violated parole and had five prior felony convictions, was much greater than the danger from the defendants in Knights and Samson. Here, then, as in Knights and Samson, the search was permissible under the general Fourth Amendment balancing test, and here, as in those cases, the official purpose was irrelevant. Because the Supreme Court’s Fourth Amendment rulings on this issue are clear, and defendant raised no parallel state law claim, his argument founders on well established Supreme Court precedent. Defendant, however, offers a polar opposite interpretation of Supreme Court precedent, relying on Griffin. But defendant’s reliance on Griffin is misplaced, for the same reasons cited by the Supreme Court in Knights: the decision to uphold the probation-related search in Griffin does not require the conclusion that the non- 54 parole related search in this case (if it indeed could be considered non-parole related) is invalid under the general reasonableness test of the Fourth Amendment. Defendant’s reliance on People v. Huntley, 43 N.Y.2d at 175, People v. Hale, 93 N.Y.2d at 454, and People v. Jackson, 46 N.Y.2d at 171, to construct a purpose-related requirement is similarly misplaced. First, all of these cases predated Knights and Samson, and thus the controlling Fourth Amendment analysis is the one embodied in those Supreme Court decisions. Second, defendant’s reliance on Huntley and Hale suffers from the same defect as his reliance on Griffin: the fact that the court upheld parole and probation related searches in those cases did not decide the question of whether a non-parole related search could be permissible under a different analysis. Knights and Samson clearly hold that it could. And while Jackson does invalidate a probation search, that search was based solely on an anonymous phone call, no search condition existed, and defendant had performed well on parole and their was no indication that he was he had any parole violations or was “unreliable.” See Hale, 93 N.Y.2d at 462 (distinguishing Jackson on these grounds). This search, if it were of a probationer on less than reasonable suspicion, would likely have been invalid under Knights, not because it did or did not have a probationary purpose, but because the Fourth Amendment balance did not favor the search. Here, the circumstances overwhelmingly supported the search, and also serve to distinguish Jackson on many grounds: defendant signed an unrestricted search provision, the search was based on probable cause, and 55 defendant had been wholly “unreliable,” having committed fourteen prior parole violations. Jackson, then, is in no way an impediment to an affirmance here. Defendant’s attempt to distinguish Knights and Samson also falls short.15 Despite the fact that both Knights and Samson, as here, involved unrestricted search provisions – ones that did “not mention anything about purpose,” Knights, 534 U.S. at 116 – defendant points out that the consent provisions in those cases referred to both parole and law enforcement officers. But this distinction cannot be dispositive for several reasons. First, the search provision was but one factor to be considered in the general Fourth Amendment balancing test adopted in Knights and Samson, and here, the balancing test as a whole, overwhelmingly, supported the validity of the search. Second, the consent provision here did not, contrary to defendant’s claim, limit the searching officer to the parole officer. While one condition compelled defendant to permit visits and searches by his parole officer, in an entirely separate provision omitted by defendant from his discussion of the issue, defendant authorized searches of his person, property and residence without limitation as to the searching officer. That provision read, in its entirety, “I fully understand that my person, residence and property are subject to search and inspection.” (A80). Because this provision had no limitation either as to purpose or as to the searching officer, defendant could not legitimately have understood it to require such limitations. People v. Wilson, 228 Ill. 2d 35, 50 (2008) (rejecting distinction between California search provision cited in Samson and Illinois search condition that did not specify Defendant mistakenly refers to these cases in his brief as People v. Knights and People v. Samson15 (Def. Br. at 28-29), but otherwise correctly cites them. 56 searching officer; “we find no merit in defendant's argument that his search condition was in any way less ‘explicit’ than that considered in Samson.); Sublett v. Com., 203 S.W.3d 701, 708 (Ky. 2006) (“We find that the trial court properly concluded that the search was justified by the plain language of the conditions of Sublett's release on parole. The applicable language states, ‘I agree that I may be subject to search and seizure if my officer has reason to believe that I may have ... contraband on my person or property.’ Sublett argues that this condition only pertains to a search by a parole officer. We disagree. This condition does not state who must perform the search and seizure but only states that the parolee agrees to a search and seizure if the underlying condition is met”). Third, the significance of the search provision in Knights and Samson was that it diminished defendant’s expectation of privacy, and the general, unrestricted search provision here unquestionably had that effect. Defendant could not have read and signed the search provision without understanding that he was submitting to searches that would not be permissible were he an ordinary citizen and not on parole. Because his privacy expectations were diminished, just as in Knights and Samson, and because every other factor in the balancing test here weighed more heavily in favor of the state than in Knights and Samson, the search here was permissible. See United States v. Flores, 288 F. App'x 365, 366 (9th Cir. 2008) (“Even if Flores was not aware of the possibility that he could be subjected to suspicionless searches, he had a ‘severely diminished expectation of privacy’ by virtue of his status as a parolee alone. Samson, 547 U.S. at 852. The district court did 57 not err in concluding that, in the totality of the circumstances, the governmental interests outweighed Flores' expectation of privacy"). Moreover, even if a parole-related purpose were required, the facts here satisfied that standard. As this Court acknowledged in Huntley, a parole officer’s duty has “two somewhat inconsistent aspects: he has an obligation to detect and to prevent parole violations for the protection of the public from the commission of further crimes; he also has a responsibility to the parolee to prevent violations of parole and to assist him to a proper integration into the community.” 43 N.Y.2d at 181. In that case, the court upheld a search of the defendant’s apartment after his arrest on a parole violation warrant, reasoning that the search served the interests of parole by helping to understand the reason for his violations. Later, in People v. Johnson, 63 N.Y.2d at 890, this Court directly addressed whether the suppression court properly found a parole-related purpose in conducting a search of the defendant’s home after he had been arrested on a parole warrant. There, the Court held that the searching officer had a parole-related purpose to investigate not only the parole violations but also to investigate information that he had committed new crimes. Here, too, the search was related to the purposes of parole. The police had specific, reliable information that defendant had a gun in his car, and it was important to determine whether defendant violated this critical, and express, condition of his parole (A80) (“I will not own, possess, or purchase any shotgun, rifle or firearm of any type without written permission of my Parole Officer”). The search 58 furthered the purpose of understanding defendant’s performance on parole and ability to abide by conditions that bear directly on the safety of the public. See also Exec. L. § 259-i (3) (obligation of parole to investigate parole violations). Moreover, knowing the basis for, and the extent of, defendant’s violations would be relevant should defendant come up for parole in the future, either as part of the completion of service of his then current sentence or as part of a future indeterminate sentence, and his performance on parole was critical to a determination of his ability to serve those conditions. Thus, the search provided information integral to the parole process.16 Moreover, as in Johnson, the search furthered the investigation of new crimes – a matter also of critical interest in any future parole determination. The fact that the search was conducted after defendant’s arrest on the parole warrant did not change the parole-related purpose. Indeed, the searches in Huntley and Johnson followed arrests on parole warrants but this Court nevertheless held that the searches were proper to investigate the reasons for the parole violations and to investigate the new crimes alleged. Similarly, if involvement of the department of parole were required, there was ample involvement here. Initially, the involvement of police in the process of executing parole warrants is both authorized and salutary. The Executive Law and the terms of the warrant itself allowed a “police officer” or “peace officer” to execute Defendant’s parole violations leading to the parole warrant in this case were of restrictions not16 otherwise placed on the public and not related to the safety of the public (RA 21A-21C). His violation of a safety-related provision, then, was crucial to his suitability for parole from a public safety perspective. 59 the warrant (RA 1). Moreover, as many courts have recognized, the police are far17 better equipped to handle potentially dangerous situations involving the re-apprehsion of often violent felony offenders than are probation or parole officers; there involvement is thus beneficial and often quite necessary. See Hale, 93 N.Y.2d at 462- 63 (approving probation search with assistance of police); Johnson, 63 N.Y.2d at 891 (approving parole search with police assistance); People v. Van Buren, 198 A.D.2d 533, 534 (2d Dept. 1993). Indeed, the danger from police involvement, if there is one, arises when the police use the probation department or parole officers as their own “agent, tool, or device” or a “stalking horse” to conduct searches to further their independent, pre-existing investigations. See People v. Andrews, 136 A.D. 3d 596 (1 Dept. 2016) (parole not acting solely on behalf of police); Helphenstine v.st Commonwealth, 423 S.W.3d 708, 715-16 (Ky. 2014) (rejecting “stalking horse” argument); United States v. Hallman, 365 F.2d 289 (3d Cir. 1966) (“agent, tool, or device”); People v. Coffman, 2 Cal. App. 3d 681 (1969). But “[t]here is little reason to question [cases upholding probation or parole searches] when the facts show that the police participation was brought about at the instigation of the probation officer or parole officer . . . .” 5 Wayne R. LaFave, Search and Seizure, sec. 10.10(e) at 576 (5 ed. 2012).th Executive Law § 259-i(3)(a)(ii) provides, “A warrant issued for a presumptive release, a parole,17 a conditional release or a post-release supervision violator may be executed by any parole officer or any officer authorized to serve criminal process or any peace officer, who is acting pursuant to his special duties, or police officer. Any such officer to whom such warrant shall be delivered is authorized and required to execute such warrant by taking such person and having him detained as provided in this paragraph.” Regulations similarly provide, "The warrant for retaking and temporary detention may be executed by any parole officer, any officer authorized to serve criminal process or any peace officer." 9 NYCRR § 8004.2 (e). 60 Here, the police had no pre-existing investigation of defendant but became involved after defendant’s parole officer determined that a parole warrant should be issued due to defendant’s fourteen parole violations. The police on the18 task force regularly worked, and made visits to parolees residences, with parole officers, and were in phone contact with Parole Officer Russell at the time of the parole search. Moreover, the timing of arrest and search, after Parole Officer Russell had finished his tour that day, arose because of the call from defendant’s ex- girlfriend, frantic about her son’s texts that he was in defendant’s car and that defendant had a gun. Because the police were bound to respond at this juncture, and because parole and not the police instituted the pursuit of defendant in the first place, the execution of the warrant and attendant search by the police was entirely proper. In addition, for the purposes of Fourth Amendment analysis, it made little difference to defendant from a privacy-intrusion point of view whether it was Det. Herlihy who conducted the search or whether Parole Officer Russell was called back to the scene to perform it. It is difficult “to comprehend how, considering the state’s ‘overwhelming interest’ in the expeditious retaking of parolees who cannot abide by the terms of their conditional release, a resident’s right to privacy is infracted more by a party of three policemen than by a party consisting of those same policemen plus an additional government agent.” United States v. Cardona, 903 F.2d 60, 67 (1 Cir. 1990) (intentional citations omitted)(cited with approval in Samson). st The need for police involvement was particularly great here, as defendant had five prior felony18 convictions, including robberies in which he displayed firearms (RA 3-20). 61 Thus, the execution of the search by the police at this final stage simply cannot tip the Fourth Amendment balance in defendant’s favor. Finally, defendant’s attempt to raise the specter of rampant, random suspicionless searches of parolees in New York should be rejected. The issue here is a narrow one: Does the Fourth Amendment permit searches of parolees who have signed general consent to search provisions and who have violated parole where the searches are based on probable cause and conducted by police officers assisting parole officers to carry out parole functions? Knights and Samson leave no doubt that the Fourth Amendment allows such searches, and that even less individualized suspicion would be enough. See United States v. Makeef, 820 F.3d 995 (8 Cir.th 2016) (probationary or parole “searches – whether for law enforcement or probationary purposes – are acceptable under Knights if based upon reasonable suspicion (or potentially a lesser standard)”). Whether this Court in a future case on a different set of facts might either envision limits to the Knights and Samson cases, such as in a “stalking horse” scenario, or decide, where presented, that the state constitution should be interpreted differently from the Fourth Amendment, need not, and indeed cannot, be decided at this time. Finally, invalidating the search on the specific facts of this case would lead to a particularly absurd result. As established above, the search here was perfectly permissible as a vehicle search, and insisting that Det. Herlihy have a parole purpose for the search, as defendant would have it, would afford defendant as a parolee more rights than an ordinary citizen would have. But, as universally 62 acknowledged, parolees have fewer rights than ordinary citizens. See, e.g., Samson, 547 U.S. at 850; Huntley, 43 N.Y.2d at 181. Thus, a reversal here would turn the ordinary Fourth Amendment analysis in this area on its head. Nothing in the Supreme Court’s jurisprudence requires, or allows, such a result. POINT TWO THE TRIAL COURT PROPERLY DISALLOWED DEFENDANT’S PEREMPTORY CHALLENGE, WHICH COUNSEL TWICE CONCEDED WAS BASED ON “NOTHING SPECIFIC,” AND DEFENDANT’S CURRENT ARGUMENT TO THE CONTRARY IS UNPRESERVED FOR THIS COURT’S REVIEW. During the first round of jury selection, four Asian prospective jurors were seated in a panel of fourteen in the jury box. During his voir dire, defense counsel asked only one question of any of the Asian prospective jurors, and asked nothing of a fifth juror who the court thought appeared Asian, but questioned individually every one of the other non-Asian members of the panel. Defendant then used four of his six peremptory challenges to strike all four Asian prospective jurors, and used a fifth challenge to strike the Asian-appearing juror. When asked to provide race-neutral reasons for his strikes of the four Asian jurors, counsel provided reasons as to three of them, but as to the fourth, J.Y., he twice conceded that he could point to “nothing specific” to support the challenge, claiming that he “did not know anything” about her. The court disallowed that challenge, and defendant now argues that the trial court could not properly do so because it had imposed time limits on voir dire and because defendant did not have an adequate opportunity to question the 63 juror. But defendant never argued in the trial court that he did not have an adequate opportunity to question this juror, or any other juror, and never complained about the court’s time limits. Nor did he argue that the court could not reject his no-knowledge excuse for either of these reasons. Thus, his current contention that the pretext finding was barred on these grounds is unpreserved and unreviewable. Moreover, the trial court could reasonably find that defendant’s excuse that he “did not know anything” about the prospective juror was disingenuous for many reasons. First, the trial court had engaged in an exceptionally thorough questioning of each of the jurors, including general initial questions, followed by more than eighteen different questions from an oral questionnaire, many with multiple subparts, as well as numerous further followup questions as to each prospective juror. This questioning covered both the personal history of the jurors and their understanding of, and ability to follow, multiple legal principles. Therefore, contrary to his claim, then counsel had a great deal of information about the prospective juror, but simply could point to nothing to justify the challenge. Second, defendant’s “lack of knowledge” of the Asian jurors was systematic: out of all four Asian prospective jurors, as well as another juror who appeared Asian, defendant asked only one single question, while individually questioning every other one of the non-Asian prospective jurors on the panel. Third, the prima facie case here was damning: defendant used five out of six, or 83%, of his strikes to eliminate all four, or 100%, of the Asian jurors, as well as the other juror who appeared Asian. The trial court was entitled to take this compelling prima facie showing into account in judging defendant’s reason 64 for striking J.Y., which was extremely weak at best. Fourth, defendant declined to challenge an African-American male juror to whom he had posed only one question and, thus, as to whom he had no more “knowledge” than the struck Asian juror. For these reasons and more, counsel’s lack-of-knowledge claim understandably rang hollow. Even worse, counsel’s assertion, twice, that he could point to “nothing specific” about the juror was not a reason at all – it was simply an assertion that he had no response or articulable reason for the challenge. The trial court was surely entitled to take this effective concession into account. And, while counsel initially parenthetically mentioned that the prospective juror’s cousin was a police officer – something he never asked the juror about – he abandoned any mention of this ground when the court asked him to articulate precisely what his reason was for the challenge. When the court pressed counsel in this fashion, his only response was “nothing specific” and that he knew nothing. Thus, the record here amply supported the factual finding that defendant’s weak, uninformative and seemingly fumbling response as to this juror was pretextual. Moreover, the facts here distinguish this case from People v. Hecker, 15 N.Y.3d 625 (2010) , where, as this Court found significant, the prima facie showing was extremely weak; the defendant promptly complained about the time limitations and moved to reopen the voir dire; there was no evidence that the failure to question was deliberate or systematic; and defendant never conceded that he had “nothing specific” to support his challenge. Thus, affording due deference to the factual finding of the trial court, which had the advantage of seeing 65 and hearing the attorney during the Batson colloquy and the voir dire as a whole, defendant’s challenge to the trial court’s pretext determination should be rejected. Initially, defendant’s current contention is unpreserved and unreviewable in this Court, precluding the need for any further inquiry. In order to preserve a question of law for this Court’s review, the defendant must show that he raised the same specific argument in the trial court as the one raised on appeal. CPL § 470.05(2); People v. James, 99 N.Y.2d 264 (2002). This rule applies to Batson claims and, specifically, to contentions with regard to pretext determinations. James, 99 N.Y.2d at 271-72. Here, defendant argues that the trial court could not find his excuse for challenging juror J.Y. – that he knew nothing about the juror – to be pretextual because the trial court imposed specific time limits on the voir dire and he did not have an adequate opportunity to question the juror. According to defendant, this Court has ruled that “when the trial court imposes a strict time limit for each party’s questioning, a party can use a peremptory challenge to strike a prospective juror because the party ‘kn[ows] little to nothing about’ the prospective juror” and that challenge cannot be disallowed (Def. Br. at 34). But defendant never argued in the trial court that the court deprived him of an adequate opportunity to question the juror, either due to the time limits or for any other reason. Nor did he argue in that court that this Court had created a rule prohibiting a finding that such an excuse was pretextual when time limits are imposed. Had such an argument been made, the court could have, at a minimum, reviewed the voir dire, considered defendant’s opportunity to question the juror, made an appropriate record with regard to any prior requests 66 for or offers of additional time, and, if necessary or appropriate, have provided defendant an additional opportunity to question the juror upon his complaint. Cf. People v. Hecker, 15 N.Y.3d at 639-40 (defendant complained of inadequate opportunity due to court’s time limits and moved to reopen voir dire). Because defendant never raised his current contention until the appeal, never presented the trial court with the argument he advances in this Court, and never provided any authority for the rule he espouses, defendant deprived the trial court of the critical opportunity to rule on the issue and correct any error, as well as the opportunity to make an appropriate record on his current claim. As a result, defendant’s current contention is beyond this Court’s power of review. Moreover, even were the issue reviewable, the trial court could reasonably have rejected defendant’s contention and overruled the challenge. As the Supreme Court recently re-emphasized, “the ‘Constitution forbids striking even a single prospective juror for a discriminatory purpose.’” Foster v. Chatman, 195 L.Ed.2d 1, 12 (2016), citing Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). The rule prohibits both prosecutors and criminal defendants from engaging in purposeful discrimination. Georgia v. McCollum, 505 U.S. 42 (1992). Faced with a challenge to the exercise of peremptory challenges on racial grounds, a trial court must follow the now familiar three-step protocol of Batson v. Kentucky, 476 U.S. 79 (1986). At step one, the moving party must establish “a prima facie case that the nonmoving party has intentionally used its peremptory challenges to discriminate 67 against a cognizable group.” People v. Hecker, 15 N.Y.3d at 650-51. There are no fixed rules for determining what evidence will establish a prima facie case of discrimination, People v. Bolling, 79 N.Y.2d 317, 323–324(1992), but this step is “not intended to be onerous” and “is seldom problematic.” Hecker, 15 N.Y.2d at 651 (citations and internal quotation marks omitted). This Court and the United States Supreme Court “have held that total exclusion of a cognizable group would give rise to an inference of discrimination (see e.g. Johnson [v. California], 545 U.S. [162,] 166 [‘all of the prospective black jurors had been stricken from the pool’]; Batson, 476 U.S. at 100 [prima facie case established where prosecutor excluded all four black prospective jurors from the venire]; People v. Hernandez, 75 N.Y.2d 350, 353 [1990] [the removal of the only four Latino jurors out of a 63–person venire gives rise to a prima facie case]; People v. Scott, 70 N.Y.2d 420, 425 [1987] [‘defendant established a prima face claim that the prosecution used its peremptory challenges to exclude (all five) blacks (in the venire) from her petit jury’] ).” Hecker, 15 N.Y.3d at 653. At step two, the non-moving party must place race-neutral reasons on the record for the strikes. The non-moving party “must give a ‘clear and reasonably specific’ explanation of his ‘legitimate reasons' for exercising the challenges,” Batson, 476 U.S. at 98, n. 20. At the third stage, the trial court must determine whether the reasons given are pretextual. This question requires “a sensitive inquiry into such circumstantial evidence of intent as may be available,” Foster, 195 L.Ed.2d at 13, 68 citing Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977), where “all of the circumstances that bear upon the issue of racial animosity must be consulted,” Snyder v. Louisiana, 552 U.S. 472, 478 (2008). Considerations may include the pattern of questioning of the jurors, Miller El v. Dretke, 545 U.S. 231, 265 (2005) (citing disparate questioning of black and white jurors); whether the attorney has asked specific questions of the prospective juror about the purported concern. Miller El, 545 U.S. at 246; People v. Kidkarndee, 41 A.D.3d 247, 248, 837 N.Y.S.2d 652 (1 Dept. 2007); People v. Torres, 289 A.D.2dst 136 (2d Dept. 2001); the treatment of similarly situated jurors, Foster, 195 L.Ed.2d at 20; Miller El, 545 U.S. at 241; a shifting emphasis on the reasons for the strike, Foster, 195 L.Ed.2d at 10; and mischaracterizations of the facts, id. at 20. And, while the sufficiency of the prima facie showing becomes moot once a party states its race-neutral reasons for lodging a peremptory strike, “the strength or paucity of the step one showing is a factor that should be considered in determining whether the record as a whole supports a finding of pretext.” Hecker, 15 N.Y.3d at 660. Ultimately, step three of the Batson inquiry involves an evaluation of the moving party’s credibility, and the best evidence of discriminatory intent often will be the demeanor of the attorney who exercises the challenge. Snyder v. Louisiana, 552 U.S. at 477. As a result, “the trial court's determination whether a proffered race-neutral reason is pretextual is accorded ‘great deference’ on appeal.” Hecker, 15 N.Y.3d at 656 (citations omitted). As the Supreme Court has observed, “[a] trial court is best situated to evaluate both the words and the demeanor of jurors who are 69 peremptorily challenged, as well as the credibility of the [party] who exercised those strikes.” Davis v. Ayala, 135 S. Ct. 2187, 2201, reh'g denied, 136 S. Ct. 14 (2015); see Hecker, 15 N.Y.3d at 656. Thus, “‘[a]ppellate judges cannot on the basis of a cold record easily second-guess a trial judge's decision about likely motivation.’” Davis, 135 S.Ct. at 2201 (citations omitted). As a result, “‘in the absence of exceptional circumstances, [an appellate court] [will] defer to the trial court.’” Id. (citations omitted). In this Court, deference is owed to the trial court on another ground as well. The third-step inquiry is a “‘pure issue of fact,’” as this Court has expressly acknowledged, Hecker, 15 N.Y.3d at 656 (citing Miller El, 537 U.S. at 339), and this Court, of course, ordinarily has no jurisdiction to decide questions of fact. N.Y. Const. Art. VI, § 3(a); Karger, Powers of the New York Court of Appeals, § 21:1 (Rev. 3d Ed. 2005). Thus, whenever “reasonable minds could disagree at this Court’s level of review,” deference must be afforded the finder of fact. People v. Hernandez, 75 N.Y.2d 350, 356 (1990), aff'd sub nom. Hernandez v. New York, 500 U.S. 352 (1991). Only where there is no record evidence to support a determination will a trial court’s factual finding be overturned. See People v. Vandover, 20 N.Y.3d 235, 239 (2012) (because there was support in the record for affirmed findings of fact, further review by Court precluded). Here, affording the trial court the deference to which it is entitled, there was ample record support for its factual finding of pretext. Initially, the prima facie case made out by the prosecutor was extremely strong. Defendant, after all, 70 eliminated 100% of the Asian prospective jurors from the panel of thirteen he faced,19 a showing that both this Court and the Supreme Court have held to be sufficient on its face to substantiate a prima facie case. Hecker, 15 N.Y.3d 653; People v. Kern, 75 N.Y.2d 638 (1990) (three out of three). Indeed, less absolute percentages would have been enough. Miller El, 545 U.S. at 241 (prima facie case where 91% of the eligible black jurors eliminated); People v. Hawthorne, 80 N.Y.2d 873 (1992) (prima facie case where People struck four out of six African-Americans). Defendant also used a highly disproportionate number of his challenges to strike these four Asian jurors. Defendant used four of his six challenges, or two- thirds of the challenges exercised, to rid the jury completely of Asian prospective jurors. And a fifth challenge was used against another juror who the trial court believed may have been Asian. Indeed, only one of the six challenges exercised by20 counsel was used against a prospective juror who was clearly non-Asian. Put another way, while using his challenges to strike 100% of the jurors who were Asian or possibly Asian, defendant used only 13% of his challenges against non-Asians. The pattern, then, was absolutely unmistakable, and the prosecutor recognized it and brought it to the court’s attention immediately (A312). The purported reason for the strike of the juror in question did nothing to alleviate the serious concern raised by this pattern of strikes. Defendant relied twice, both before and after the court pressed him to be precise, on the fact that he One non-Asian juror was removed on consent after questioning by the parties (A311).19 When the prosecutor identified the cognizable group as Asian, the trial court raised a question as20 to whether Mr. Mehtaji, fell into that group (A312-13). 71 “did not know anything” about the prospective juror, J.Y., admitting he could point to “nothing specific” about the juror that would support the challenge (A313). Neither of these assertions were the slightest bit reassuring. In fact, as the court well knew, it had elicited a great deal of information as to each of the prospective jurors, including J.Y., in an exceptionally detailed voir dire that the court itself had conducted. This consisted of a series of questions to the group, with some follow-up questions to individual jurors, followed by a detailed questionnaire including eighteen more questions that every juror had to individually answer orally, many of those questions with multiple subparts, often provoking further follow up questions from the court. The court began the voir dire by asking a series of questions of the panel as a whole about whether the jurors’ personal beliefs or other predispositions might interfere with their ability to assess the evidence or to be fair and impartial, and the court directly addressed J.Y., eliciting a personal response to at least one of these questions (A130). The court then asked a series of questions of each individual juror, including his or her age, marital status, place of birth, residence, length of time living at the residence, length of time living in the country, educational background, occupation, his or her specific place of employment, duration of work, and number of children and children’s school status or occupation. The court also asked about21 each juror’s prior jury service in state or federal court, whether they or any close friend had ever been the victim of a crime as well as the attendant circumstances, whether they had ever been a witness to a crime, convicted of a crime, accused of a The precise content of the questionnaire everyone received is evident from the voir dire of the first21 prospective juror (A132-39). 72 crime, a party to a civil lawsuit, had friends or relatives in law enforcement, or had ever been employed in a law firm or had legal training. The court then asked each individual prospective juror about what their experiences were dealing directly with the police, what their attitudes were towards the presumption of innocence and the burden of proof, their ability to follow the law, how they would be required to vote after hearing no evidence, and their general ability to be fair and impartial. And whenever a juror expressed any hesitation over a question or answer, the court followed up with a series of questions. As to J.Y., this questioning produced twenty- eight individual responses, in addition to her response to the initial question (A168- 70). In light of the court’s very thorough voir dire of each juror, defendant’s claim of lack of knowledge was suspect from the outset. Moreover, defendant’s current contention that he was referring, at that time, to his alleged inability to personally examine the juror also rings hollow. First, this is simply not what counsel said at the time. Again, defendant never complained that he had insufficient time to ask questions of all of the jurors, and never requested to reopen the voir dire and question J.Y. or any other juror about any specific concern. Cf. Hecker, 15 N.Y.3d 639-40 (defendant complained of inability to personally examine jurors due to court’s time constraints and asked to reopen voir dire). Even when the prosecutor asserted that defendant had ample opportunity to question J.Y., defendant did not argue that he lacked such an opportunity due to the court’s time restrictions, or, for that matter, for any other reason (A314). In fact, counsel did not dispute this assertion at all. 73 Second, and even more tellingly, defense counsel’s pattern of questioning revealed that the failure to examine J.Y. and the other Asian prospective jurors was quite deliberate. Indeed, defendant asked only one question during the entire voir dire of any of the Asian jurors, and no questions to the fifth juror who the court thought might have been Asian. By contrast, defendant questioned every juror who was not, or did not appear, Asian. This was, unmistakably, more than coincidence. The trial court, then, would have understandably been skeptical of any claim regarding defendant’s opportunity to question jurors, had he made such a claim at the time, since it was apparently only the Asian jurors he had insufficient time to question, and not any of the non-Asian jurors. This deliberate avoidance of questioning of the Asian jurors, together with defendant’s decision to strike each and every one of the Asian jurors and the additional juror who appeared Asian, thoroughly undermined defendant’s generic assertions of lack of knowledge and race neutrality. See United States v. Grant, 563 F.3d 385, 391-92 (8th Cir. 2009) (failure to question three jurors in cognizable group supported denial of defendant’s challenges). Even more revealing was defendant’s outright acknowledgment that he could point to “nothing specific” to support the challenge to J.Y. While he had come up with reasons as to the three other Asian jurors, he candidly conceded not once, but twice, that he could point to “nothing specific” as to this juror. This “reason,” if it was one at all, arguably did not even pass muster at stage two of Batson, as the Appellate Division noted. People v. McMillan, 130 A.D.3d 651, 654 (2d Dept. 2015). 74 Certainly, it lacked any force at stage three, serving more as an admission than as an excuse. The trial court could, under all the circumstances, take defense counsel at his word: “nothing specific” supported his challenge, other than race. And, notably, although the court ultimately allowed the strikes against the three other Asian jurors, the reasons that defendant proffered for those strikes were suspect as well. See United States v. Alvarado, 923 F.2d 253, 256 (2d Cir. 1991) (“The relative plausibility or implausibility of each explanation for a particular challenge . . . may strengthen or weaken the assessment of the prosecution's explanation as to other challenges and thereby assist the fact-finder in determining overall intent”). Defendant's justification for striking K.C. – that he had a background in theology and sociology and taught religion – was belied by the fact that defendant had chosen not to strike another theologian on the panel, Mr. Marino, a similarly situated juror who was not Asian (A152, 314-313). Further, as the People argued, defendant's justification for striking K.C. – because she was too young – was pretextual because defendant had failed to move to strike similarly youthful jurors who were not Asian, such as D.I. (A313-14). Defendant's justification for striking D.Y. – because he had prior civil jury service – was equally insubstantial (A313-14). Indeed, the trial court was quite generous in upholding these strikes, despite similarly situated non-Asians, and the court's decision to disallow only the challenge to J.Y. demonstrates that its fact finding was balanced, and therefore reasonable. Also significant was defendant’s decision not to strike D.T., who had answered the same questionnaire as J.Y., who counsel had asked only one generic 75 question to, and who was young like K.C., but who was a black male, like defendant (A315). Indeed, defendant apparently had little “opportunity” to question this juror as well, if his current claim is to be believed, and yet he was more than ready to keep this same-race prospective juror on the jury. This lent further support to the conclusion that race, and not knowledge or opportunity to question, was dispositive for defendant. Defendant’s assertion that he was entitled to rely on the fact that the juror’s cousin was in law enforcement also falls flat. Although, after initially saying he knew nothing about the juror, counsel mentioned the juror’s cousin, he was subsequently pressed by the court on the precise reason for his challenge. The court, faced with the lack of knowledge claim and the “nothing specific” concession, asked counsel if there was anything supporting the challenge, “[o]ther than the fact that she is Asian?” (A313). Rather than relying or expounding on the law enforcement connection, counsel’s answer was just to state, again, “There is nothing specific. I don’t know anything about her” (A313). Here, too, the court was entitled to take counsel at his word. He did not, when asked specifically about his reason, rely on the prospective juror’s law enforcement connection, and the court could quite justifiably conclude that passing reference to the juror’s cousin was not the real basis or rationale underlying the challenge. Moreover, if defendant were concerned about this distant law enforcement connection, he in fact had ample opportunity to ask her about it individually. He could have, but did not, elicit how often she talked to her cousin, 76 whether they discussed his job, whether she had feelings or predispositions as a result of their discussions, or whether her cousin even lived in the United States, given that she was born in Hong Kong (A168). Nor, for all the reasons stated above, could defendant rely on any purported lack of opportunity to examine the juror during voir dire as a ground for not asking these questions. The failure to question the prospective juror on the issue, along with the abandonment of reliance on this fact, suggest that “[t]here is no good reason to doubt that the [excuse] was anything but makeweight.” Miller El, 547 U.S. at 246 (failure to question and belated nature of reliance rendered excuse pretextual); see Reed v. Quarterman, 555 F.3d 364, 377 (5th Cir. 2009) (“As the Supreme Court stated [in Miller El], the prosecution's failure to question a potential juror about a characteristic that the State asserts is important is evidence that the asserted reason was actually a pretext for discrimination”). Nor was there anything in the juror’s responses that would have suggested that she was unable to judge the case fairly due to this connection. When asked in a group setting whether she would give police officers an "edge," or find an officer more credible than another witness, she expressed no reservations at all (A296). To the contrary, J.Y. gave continuous assurances of her ability to be an objective juror throughout voir dire. She assured the court that she had never had any experience with the police that would affect her ability to be fair and impartial in defendant's case, and could think of no other reason why she would be anything but fair and impartial in this case (A170). See Foster v. Chatman, ___U.S.___, 195 77 L.Ed.2d at 18 (reciting, in support of pretext ruling, that challenged juror “asserted no fewer than four times during voir dire that he could impose the death penalty.”). Given defendant’s clear pattern of strikes, the pointed absence of questioning of the Asian jurors, and, perhaps most tellingly, his concession that he had “nothing specific” supporting his challenge to J.Y., the trial court could reasonably conclude that defendant had impermissibly used race in deciding to strike this juror. Moreover, the court had the advantage of being present and hearing how counsel delivered his reasons, which, even on a cold record, seemed fumbling and non-specific in contrast to the reasons he provided for the others. Because “[a] trial court is best situated to evaluate both the words and the demeanor of jurors who are peremptorily challenged, as well as the credibility of the [party] who exercised those strikes, ” Davis v. Ayala, 135 S. Ct. at 2201; because issues of credibility are the province of the trial court and cannot be reviewed in this Court; and because there is ample support in the record for the determination below, the trial court’s reasonable determination should be upheld. Nor does People v. Hecker, 15 N.Y.2d 625 (2010), upon which defendant so heavily relies, require a different result. First of all, defendant’s characterization of Hecker’s holding is flatly incorrect. Defendant claims that Hecker created a legal rule that, “when the trial court imposes a strict time limit for each party’s questioning, a party can use a peremptory challenge to strike a prospective juror because the party knows little to nothing about the prospective juror” (Def. Br. at 34, internal quotation marks omitted). To the contrary, Hecker did not 78 categorically sanction a “know nothing” response whenever a trial court imposes time limits on voir dire, as defendant suggests. Rather, this Court in Hecker engaged in a detailed inquiry of the facts and circumstances of the voir dire, looking at all of the evidence in the record to determine if defendant “genuine[ly]” relied on this excuse. 15 N.Y.3d at 659, 660. Indeed, the Hecker court itself noted that the third stage issue is a “pure issue of fact,” rather than one of law, and thus it could not have purported to craft a legal rule as to that. Id. at 656. Nor would the rule defendant advances make sense, as it would provide carte blanche to a party to rely on the “know nothing” claim as an excuse for racial discrimination whenever a trial court imposes time limits, even where as here, the party deliberately avoids questioning jurors of a particular race. The court did not promulgate such a rule in Hecker; instead, it simply invoked the unremarkable legal proposition that there should be record support for a trial court’s finding of pretext. Moreover, virtually all of the underlying facts and circumstances in Hecker are materially different from those here. There, for example, unlike here, defendant expressly argued that “the limited time allotted to her to voir dire the panelists prevented her from speaking with most of them,” id. at 659, and even affirmatively requested to re-open the voir dire to question the juror. This Court placed heavy reliance on this request, expressly noting “we find defense counsel's willingness to question Chan indicative of her genuine desire to learn more about this prospective juror and a reflection that her decision to strike her in the first instance was not on account of race.” Id. at 660. Here, of course, defendant never mentioned 79 the time limits or his opportunity to question the jurors, and never requested to reopen the voir dire. Additionally, in Hecker this Court found significant that “there [was] no support in the record to conclude that defense counsel purposely avoided questioning panelists of Asian descent in order to justify peremptorily striking them at a later point.” Id. at 658. Here, of course, the record is exactly to the contrary. Defense counsel here was quite obvious in his avoidance of questioning the Asian, and even possibly Asian, prospective jurors; the only thing more apparent was the race-based nature of his actual challenge when he relied on his lack of knowledge as an excuse.22 In addition, this Court relied in Hecker on the weakness of the prima facie case advanced by the prosecution, noting that defendant had struck only two Asian jurors, one of whom she challenged for cause, and that there were likely three others who were of Asian descent. Id. at 660. One of these two, this Court noted, counsel challenged for cause, and “would have been a problematic juror for any defendant.” Id. at 661. Here, rather than two out of five, defendant struck all four Asian jurors and an additional juror who may have appeared Asian. And, in contrast to Hecker where the People never alleged that the defendant struck all Asian jurors, id., the prosecutor here immediately told the trial court “there are four Asians on the Even the time limits imposed by the court were substantially different here. In Hecker, counsel had22 no more than ten minutes to examine eighteen panelists, and it was thus hardly surprising that he did not reach all of the jurors. Indeed, he had only 33 seconds per juror. Here, defendant had fifteen minutes to examine fourteen jurors, almost twice as much time per juror. Even if counsel could not question all of the jurors under this time limit, he could have at least asked more than one question of the five Asian or possibly Asian jurors. After all, he had plenty of time to question every one of the non-Asian prospective jurors. 80 panel. He struck them all. It’s a hundred percent” and defendant never argued otherwise (A312). Still further, defendant never moved to challenge any of the Asian prospective jurors for cause, nor was there any reason to believe they were “problematic . . . for any defendant.” Thus, the prima facie showing here was far stronger than that in Hecker. In short, the facts and circumstances here tell a very different story from those in Hecker. Here, the dramatically disparate nature of the questioning of the Asian and non-Asian jurors, the overwhelming strength of the People’s prima facie case, counsel’s failure to complain about the time limits or even claim he lacked an adequate opportunity in voir dire, and his twice-repeated admission that he had “nothing specific” supporting the challenge all provided more than reasonable grounds for the fact-finding of the trial court. That factual finding, amply supported by the record, should not be disturbed on the limited review available in this Court. POINT THREE MOST OF DEFENDANT’S PRO SE CLAIMS ARE UNREVIEWABLE AND ALL ARE MERITLESS. In his pro se supplemental brief, defendant raises three claims. First, he argues that the prosecutor violated his Confrontation Clause rights when she elicited a portion of the phone call from the defendant’s ex-girlfriend leading the police to return to the residence. Second, he contends that the prosecutor made numerous improper comments in summation, depriving him of a fair trial. Third, he argues that counsel was ineffective because of a disagreement between him and counsel prior to 81 the trial and for other reasons. The first two claims are unpreserved and all of defendant’s claims are meritless. Defendant never raised any Confrontation Clause claim at trial with regard to the call and raised only general objections during the prosecutor’s summation, some of which resulted in curative action that defendant did not challenge, as required to preserve his contention. Moreover, the prosecutor strictly adhered to the trial court’s ruling permitting a limited reference to the phone call for the non-hearsay purpose of showing why the police hastily returned to the residence that they had just left, while excluding any reference to the caller’s information that defendant had a gun. And the prosecutor’s comments in summation were little more than attempts to address defendant’s arguments that a third party, specifically his stepson, possessed the gun, even though it was in defendant’s car. In addition, counsel vigorously represented defendant at trial, and while defendant had created discord with counsel by disputing strategies and tactics, he cannot succeed on his ineffectiveness claim. Apart from the fact that defendant should not be allowed to benefit from a rift he himself created, the record discloses that defendant and counsel resolved their differences during trial, and that defendant’s attorney was able to proceed as effective counsel under the state and federal constitutions. During jury selection, the prosecutor made an application pursuant to People v. Molineux, 168 N.Y. 264 (1901), to admit evidence of defendant’s parole warrant and the contents of the phone call that Det. Tsangaris received from defendant’s ex-girlfriend. The prosecutor explained that without this information, 82 the jury would not understand why the detectives were looking for defendant, why they left and returned so quickly to the location they had just departed, why they arrested him without any inquiry or evidence of a crime, and why they searched defendant’s car. The prosecutor thus sought to elicit both that the caller told the detective that defendant had returned to the house, in order to explain their hurried turn around, and that the ex-girlfriend’s son had said defendant had a gun in the car, in order to explain the search of the car (RA 32-38, RA 30, RA 37). The caller’s statement about the gun also explained why the police returned so quickly to the house (RA 42), and, the prosecutor argued, the frantic nature of the ex-girlfriend’s statements to the police about her son’s presence in the car with defendant and a gun constituted an excited utterance (RA 37). Counsel objected to all of the evidence, arguing that the court should simply instruct the jury not to consider the search or arrest issue, and claiming that the contents of the call were hearsay (RA 37, 49-50). After extensive discussions, the court ruled that the People could refer to the existence of a warrant, but not to the fact that it was a parole warrant, and that they could elicit that the caller indicated that defendant was at the location they returned to, but could not otherwise adduce the content of the phone call, including any reference to a gun (RA 49). 23 The Court ruled that “the People will be allowed on their direct case through the detective, to23 establish that there was a warrant that had been issued for the defendant's arrest, that pursuant to the terms of that warrant that the police were authorized to both arrest the defendant, search his person or property and with that warrant, that they had gone to a certain address. The defendant was not present. They had left their card for the occupants of that home to contact them. When the defendant -- if they had any further information as to where the defendant is, that they were contacted. They were told that the defendant is now back in that home. They go back to that home” (RA 49). 83 Prior to opening statements, counsel sought to clarify the issue and the court took argument again (RA 52-57). The prosecutor argued that the phone call explained the officer’s decision to turn around and look for defendant at the location they had just left (RA 54-55) and, again, that the ex-girlfriend’s frantic statements were an excited utterance (RA 53). Counsel sought to exclude any testimony that the ex-girlfriend told police that defendant was coming back to the house, and the court ruled that there was a non-hearsay purpose for this evidence, in order to explain why the police returned to the residence. The court further stated that while even the evidence of the gun might be admissible to explain the urgency of the return, the court excluded that evidence as part of a compromise (RA 56-57). The prosecutor acknowledged, “You indicated to me [to elicit] nothing about that and I accept your ruling on that and that's fine” (RA 55). True to her word and consistent with the court’s ruling, the prosecutor never elicited any reference to any gun or to the son during the ex-girlfriend’s phone call. Det. Tsangaris testified on direct only that the caller had told them that defendant was coming back to the location they just left, driving a Buick Park Avenue (RA 69-75). At one point, the prosecutor attempted to elicit that the detective had his gun drawn during the encounter as a matter of protocol in making an arrest on a warrant, and counsel objected, alleging that the prosecutor was trying to elicit more of the content of the call (RA 76-78). But the jury never heard that the ex-girlfriend was texting with her son about a gun in the car, and indeed never heard any reference 84 to a gun being made during that phone conversation. At counsel’s request, the trial court then gave a limiting instruction to the jury (RA 78). Defendant first argues that the court’s ruling and the prosecutor’s purported failure to follow that ruling violated his rights under the Confrontation Clause. This claim is unpreserved and unreviewable here. In order to preserve a question of law for this Court’s review, a defendant must state the ground of his objections with specificity. See C.P.L. § 470.05(2); People v. Santiago, 22 N.Y.3d 740, 749-750 (2014). In People v. Kello, 96 N.Y.2d 740, 743 (2001), this Court held that defendant’s objection to the introduction of 911 calls on state hearsay grounds did not preserve any issue regarding the admissibility of the calls under the Confrontation Clause. After noting the difference between the analysis applicable to state hearsay exceptions and the Sixth Amendment’s Confrontation Clause, this Court concluded, “[t]he defendant's failure to raise a Confrontation Clause objection precluded the trial court and prosecution from considering and, thus, avoiding any constitutional error which, as previously discussed, differs from the trial evidence error which was preserved.” Id. at 744. Here too, defendant never raised the Confrontation Clause issue, as he does now, nor even referred to the federal constitution on this issue in any way. Instead, as in Kello, defendant argued that the contents of the call were merely “hearsay” under state law. Defendant’s reference to the purported error of evidence law deprived the trial court and prosecutor of the opportunity to consider, and if necessary, adduce evidence with reference to the very 85 different Confrontation Clause analysis. As a result, the issue is unpreserved and24 cannot be reviewed here. Moreover, even if the issue were preserved, defendant could not prevail. As both this Court and the Supreme Court have acknowledged, statements admitted for a non-hearsay purpose are not testimonial and fall outside the ambit of the Confrontation Clause. Crawford v. Washington, 541 U.S. 36, 59 n. 9 (2004); People v. Reynoso, 2 N.Y.3d 820 (2004). Here, the evidence, as the trial court explained, was admitted solely for a non-hearsay purpose, to explain the reason that the officers returned to the house and were looking for the Buick Park Avenue (RA 56). In addition, the trial court gave a limiting instruction, at defense counsel’s request, after which counsel did not object further. Because the evidence was admitted for a limited non-hearsay purpose, it did not offend the Confrontation Clause. Defendant appears to object to the court’s Molineux ruling as well (Supp. Br. at 14), but this ruling was both proper and favorable to defendant, as it eliminated any reference to uncharged crimes at all. After lengthy colloquies, the court, in a careful and balanced ruling, admitted only the limited portion of the ex-girlfriend’s call regarding defendant’s return to the premises and simultaneously but precluded any reference to the information the ex-girlfriend related about defendant’s possession of a gun. Because merely returning to the ex-girlfriend’s house in a Buick Park Avenue was not a crime, the Court struck a balance highly favorable to On the hearsay issue, the prosecutor maintained that the ex-girlfriend’s call was an excited24 utterance (T189, 370). There was no discussion of the “emergency purpose exception” under the Confrontation Clause, or the factors attendant to such an exception. See Michigan v. Bryant, 562 U.S. 344 (2011); People v. Nieves-Andino, 9 N.Y.3d 12 (2007). 86 defendant, removing the uncharged crimes concern identified in Molineux and taking the evidence outside the prohibition of that case. See People v. Arafet, 13 N.Y.3d 460, 465 (2009) (no Molineux issue where evidence did not implicate defendant in uncharged crimes; “The point of Molineux is to prevent a jury from convicting a defendant because of his criminal propensity. Evidence of two criminal transactions in which defendant was not involved could show nothing about his propensity”); see also People v. Harris, 26 N.Y.3d 1 (2015) (evidence of murders unconnected to defendant to show motive for witness recantations). Moreover, absent the evidence here, the jury would have been left to wonder why the police, having just visited the same location and having found that defendant was not there, would have turned around in the middle of their next assignment and precipitously returned to the house. This was a valid non-hearsay purpose for the evidence. See People v. Morris, 21 N.Y.3d 588 (2013) (background evidence explaining basis for stop admissible); People v. Tosca, 98 N.Y.2d 660 (2002). In Tosca, this Court upheld the admission of evidence that just before defendant's arrest, a taxi driver reported an encounter with defendant involving a gun. This Court held, “The testimony was admitted not for its truth, but to provide background information as to how and why the police pursued and confronted defendant.” 98 N.Y.2d at 661. Here, the admitted testimony provided an important explanation for the detectives’ return, and, due to the court’s ruling, did not even implicate defendant in any crime. The ruling here was thus more favorable to defendant and equally probative as the evidence in Tosca. See also People v. Ludwig, 87 24 N.Y.3d 221 (2014)(prior statements of witness implicating defendant in crime admissible to explain what caused police investigation); People v. Cullen, 24 N.Y.3d 1014 (2014) (same). Moreover, contrary to defendant’s claim, the prosecutor’s conduct in eliciting evidence of the call did not exceed the boundaries of the Molineux ruling. Again, the prosecutor never elicited any of the content of the call regarding defendant’s possession of a gun, or regarding a gun at all. And while, as defendant notes (Supp. Br. at 6), counsel objected numerous times during Det. Tsangaris’s testimony in this regard, he did so to preserve his pretrial hearsay objection (RA 70, RA 71, RA 72). Indeed, counsel objected even to the court’s own questioning, undertaken after defendant objected, which was designed to ensure that the witness did not stray into any mention of the gun (RA 70, RA 71, RA 72). This in no way suggests that the evidence elicited went beyond the boundaries of the court’s ruling, and, indeed, it did not. Defendant’s other complaint about the prosecutor, that her summation comments deprived him of a fair trial, is wholly unpreserved for appellate review. Defendant mentions three specific purported errors in this regard: (1) that the prosecutor talked over counsel’s objections, argued with the court, and asked for a readback “while telling the jurors her version of what the witness had said”; (2) that she condoned the purportedly false testimony of Det. Tsangaris with regard to the initial July 3 visit to the location of arrest, and (3) that one of the detectives wouldrd have had to embody “pure evil” if the facts were as defendant alleged (Supp. Br. at 88 17). But defendant did not argue in the trial court that the prosecutor’s responses to objections or attitude toward the court deprived him of a fair trial, nor did he ever maintain that she condoned perjury in arguing that Det. Tsangaris’s testimony was truthful. He thus failed to preserve these issues. See C.P.L. § 470.05(2); People v.25 Griggs, __ N.Y.3d __, 2016 N.Y. Slip Op. 4655 (June 14, 2016) (defendant's argument that he was deprived of a fair trial because of “[a] pattern of severe prosecutorial misconduct” unpreserved); People v. Tonge, 93 N.Y.2d 838 (1999) (party's failure to specify the basis for a general objection renders the argument unpreserved for review). And while defendant objected to the “pure evil” comment, the trial court admonished the prosecutor immediately and defendant never expressed dissatisfaction with the curative action taken by the court (RA 170). This too failed to preserve any issue for review. People v. Heide, 84 N.Y.2d 943, 944 (1994) (failure to object to curative action); People v. Medina, 53 N.Y.2d 951, 953 (1981) (same). Still further, the failure to raise these issues is significant. Had defendant argued that she was talking over counsel, the court could have made a specific record in this regard, and, if the court agreed with defendant’s current characterization, could have taken specific action to prevent such behavior from occurring, even perhaps threatening the prosecutor with a mistrial. Had defendant raised the issues of the supposed concession that Det. Tsangaris had lied and the purported impropriety of At one point in the summation, counsel moved for a mistrial, saying only “she is not stopping” (RA25 179). This brief complaint was not renewed at the end of the summation, nor did defendant ever indicate the particular conduct that the prosecutor was allegedly “not stopping” or why it was improper. Similarly, he did not argue that her conduct rose to the level of depriving defendant of his constitutional right to a fair trial. 89 arguing his veracity after that, the prosecutor could have explained that her statement was not a concession at all, but that she was merely making an assumption, for the sake of argument, in the course of arguing another issue. And had defendant complained that the trial court’s admonition about the remaining comment was insufficient, the court could have given a lengthier, and even more forceful, instruction to the jurors. Because defendant did not raise any of these issues at trial, they may not be reviewed by this Court. 26 Defendant’s contentions are, in any event, without merit. While numerous objections were interposed by counsel, and the court sought to placate counsel by suggesting on several occasions that the prosecutor talk more about her case than defendant’s summation arguments, the prosecutor’s subsequent attempts to convince the court otherwise, and to have sidebar conferences so that she could do so outside the hearing of the jury, were perfectly permissible (RA 154, 160, 162, 173, 179). Moreover, even on the cold record, it appears that counsel interrupted the prosecutor equally as often as the prosecutor may have done to counsel (RA 153, 155, 174). And, when counsel disputed her recitation of the testimony of the witnesses, it was similarly, perfectly proper to encourage the jury to have the testimony read back to them to resolve any difference of opinion in this regard (RA 153, 154, 156- Nor did defendant preserve any other arguments with regard to these comments, as his objections26 were almost always general ones (RA 152, 153, 155, 160, 162, 163, 165, 167, 168, 169, 170, 174, 183, 184, 185). See Tonge, 93 N.Y.2d 838. In addition, defendant only once objected to the adequacy of the court’s admonitions or other curative action (RA 179). As to all other instances, he is presumed to have been satisfied with the court’s corrective action (RA 153-154, 155-156, 156, 160, 162, 166, 168, 170, 173). See Heidi, 84 N.Y.2d at 944. 90 57, 163, 167). Indeed, defense counsel did the same thing in his summation (RA 147-48). Nor did the prosecutor ever concede that Det. Tsangaris was lying, and her argument that Det. Herlihy was simply mistaken when he testified differently from Tsangaris was perfectly rational. During the pre-charge conference, defendant, the prosecutor and the court engaged in a lengthy colloquy regarding the need for a circumstantial evidence charge, including what constituted direct evidence and what was circumstantial evidence in this case (RA 120-133). In the course of that discussion, the prosecutor referenced Det. Herlihy’s testimony that the police did not stop and get out of their car the first time that they went by the residence on July 3rd (RA 126). Her comment at that time was in the nature of making an assumption, for the sake of argument, that Det. Herlihy’s version was correct, as the prosecutor maintained that even if it was, there was direct evidence of guilt here (RA 126). Neither the court nor defense counsel ever indicated that they took the prosecutor’s statement as an admission or concession that Det. Tsangaris had lied (RA 126). Nor did counsel, who objected vociferously throughout the summation, even attempt to intervene when the prosecutor suggested in summation that Det. Tsangaris was telling the truth and Det. Herlihy was simply mistaken (RA 164). Indeed, the prosecutor’s contention at that time that Det. Tsangaris would better remember the events during the first stop at the residence because he was the one who exited the car and had the conversation with the occupant while Herlihy had not, was a logical effort to suggest to the jury that Herlihy was simple mistaken (RA 164). No impropriety occurred in attempting to reconcile conflicting versions of this event. 91 Lastly, the prosecutor’s comment about “pure evil,”which perhaps could have been better phrased, did not deprive defendant of a fair trial. During her summation, the prosecutor argued that any contention that the police planted the weapon in the car would mean that Det. Herlihy had outright lied, and that he had no need to do so to arrest defendant, since Herlihy already had a warrant for defendant’s arrest (RA 169-170). In this context, the prosecutor argued that the jury would have to believe Herlihy was “pure evil” to have done such a thing without even a logical motive to do it. In response, the trial court directly admonished the prosecutor, “People, the jurors wouldn't have to find the officer is pure evil to find the defendant not guilty” (RA 170). This also served as an instruction to the jury to reject this portion of the prosecutor’s argument. The record reveals that the prosecutor used the phrase only once, and defendant did not express dissatisfaction with the court’s combination admonition and instruction to the jury specifically addressing this remark. And, of course, the court informed the jury in its final charge that they are not bound by counsel’s arguments and their own recollection and evaluation of the evidence controls (RA 188. 189). Thus, even assuming that the prosecutor mis-spoke in making this comment, any possible prejudice was dissipated and defendant was not deprived of a fair trial. See People v. Roopchand, 65 N.Y.2d 837 (1985) (improper “safe streets” argument did not deprive defendant of fair trial); People v. Baker, 14 N.Y.3d 266 (2010) (instruction to follow the law as court gives it to jury sufficient to dispel any possible prejudice from prosecutor’s reference to legal principles); People v. Williams, 46 N.Y.2d 1070, 1071 (1979) (court’s lucid curative instructions, 92 without further complaint, deemed to have corrected the error to defendant’s satisfaction). Defendant’s complaints about counsel’s performance is similarly misplaced. Under the state standard, defendant has received effective assistance “[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation’” People v. Griggs, __ N.Y.3d __, 2016 N.Y. Slip Op. 4655 (June 14, 2016)(quoting People v. Baldi, 54 N.Y.2d 137, 146–47 [1981] ). Under the federal standard, “a defendant must demonstrate that (1) his or her attorney committed errors so egregious that he or she did not function as counsel within the meaning of the United States Constitution, and (2) that counsel's deficient performance actually prejudiced the defendant.” People v. Gross, 26 N.Y.3d 689, 693 (2016). Under either standard, a reviewing court should not second-guess matters of strategy or tactics, or consider what other alternatives may have been appropriate. People v. Henderson, 27 N.Y.3d 509 (2016) (“courts should not be in the business of deciding, in hindsight, what would have been the best or a better trial strategy in any given case”); People v. Parson, __ N.Y.3d __, 2016 N.Y. Slip Op. 4654 (June 14, 2016) (“counsel's efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective”). Defendant first points to his disagreements with counsel on matters of strategy and tactics, which caused counsel to express at one point that he feared that if he did as defendant wished, his representation could be seen as ineffective. But 93 neither the discord created by defendant himself, nor counsel’s expressed desire to perform effectively rendered his performance inadequate. Prior to the first witness being called, counsel alerted the court that he and defendant had a “disagreement in terms of what, if any, facts I should attempt to elicit during the trial” (RA 51) and “significant disagreement in terms of how this case should be tried, what should be brought out or not brought out” (RA 59). Defendant himself informed the court that he wished counsel to elicit that the warrant for his arrest was specifically a parole warrant – something counsel sought to keep from the jury because it would indicate he had previously been convicted of a felony – and to contend that defendant’s car had been illegally searched pursuant to the warrant – which might allow the prosecutor to elicit the full substance of the call from defendant’s ex-girlfriend (RA 58-61, 63). In this context, counsel expressed concern that if he did what defendant wanted him to do, his conduct would “raise serious question as to whether he’s being effectively represented by Counsel and that Counsel on his own could be subject to outright criticism for bringing out matters that would not otherwise be part of this trial unless counsel opened the door to them” (RA 51; see also 66). Later, however, with the aid of the court, counsel and defendant worked out a system under which defendant would state in writing his specific objections or questions he wished counsel to ask, but otherwise allow counsel to “do his job” (RA 87). The court later asked counsel if he had reached “an accommodation with the defendant,” and counsel reported that he and defendant were satisfied that 94 defendant’s “written questions were handled appropriately” and that “[e]very question that I had asked was a question that I intended to pose, either on my own or after consultation with my client. So that I had, for the record, not asked a question that I would not otherwise have asked.” (RA 103). Defendant, however, still wished to bring out the full contents of the ex-girlfriend’s call, although counsel never did, and defendant made his own written mistrial application, which the court denied (RA 103). Counsel subsequently reported that while he and defendant had “had various disagreements, . . . we have ironed them out over a period of time” (RA 118). As for the defense case, although defendant had a strong desire to testify on his own behalf, counsel advised against it due to defendant’s lengthy criminal history, a portion of which would come in as a result of the court’s Sandoval ruling. Defendant decided to heed counsel’s advice, and did not take the stand (RA 119). Contrary to defendant’s contention, the preliminary discord with counsel over matters of strategy and tactics does not support an ineffective counsel claim for at least two independent reasons. First, the discord was of the defendant’s own making. Matters of strategy and tactics are exclusively within the province of counsel, see People v. Hogan, 26 N.Y.3d 779 (2016); People v. Ferguson, 67 N.Y.2d 383, 390 (1986), and defendant’s insistence that counsel ask questions and engage in tactics that were potentially prejudicial to him did nothing more than make counsel’s task of protecting defendant’s rights more difficult. Defendant cannot claim ineffectiveness where he himself impedes an effective defense. Griggs, __ N.Y.3d __, 2016 N.Y. Slip Op. 4655 (counsel effective where defendant’s own conduct in 95 requesting to proceed pro se interfered with counsel’s efforts to properly present and preserve issues). Second, despite defendant’s efforts to undermine counsel’s performance and elicit potentially prejudicial matters, counsel did not engage in any tactic or ask any question that he felt would adversely affect defendant’s interests. Thus, even though defendant wished to elicit the full contents of the phone call from his ex- girlfriend, counsel never did so and never opened the door to the prosecutor doing so. Similarly, as counsel explained to the court, he was not made to ask any question on cross-examination that he did not otherwise wish to ask. Still further, counsel was able to convince defendant not to take the stand, thus precluding damaging cross about his extensive criminal history. Thus, counsel exercised independent control of strategic matters and precluded the introduction of prejudicial material, obviating his fear that he would be placed in a position requiring him to act ineffectively. And, of course, to the extent that defendant now claims that counsel’s conduct was poor strategy, or bereft of strategy, to the extent it conflicted with his strategy, such claims are unreviewable on direct appeal. See People v. Henderson, 27 N.Y.3d 509, n. 2; People v. Carver, 27 N.Y.3d 418 (2016). For similar reasons, defendant cannot show prejudice from counsel’s conduct at trial. If anything, counsel prevented highly prejudicial matters from being elicited. This included the full contents of the ex-girlfriend’s call, including the hearsay information that defendant was in the car with the gun, and the fact that he was being sought on a parole warrant, indicating that he had previously been 96 convicted of a felony. Counsel’s conduct, then, highly favored the defense, rather than undermining it in any way. Defendant’s remaining contention, that counsel should have used inconsistencies in the testimony to argue defendant’s innocence, is also unavailing. Indeed, it was counsel who elicited the inconsistencies on cross through skilled cross examination. Counsel elicited from Det. Herlihy that he and his partner had merely driven by the house earlier that morning while eliciting from Det. Tsangaris that they actually stopped and Tsangaris spoke with a female in the second floor apartment on that occasion (RA 79, RA 89-90). Counsel also elicited from Herlihy that the arrest was made in the hallway, while eliciting from Tsangaris that the arrest was made in an upper bedroom (RA 81-82, RA 92). And while Herlihy claimed to have recovered the keys from directly underneath defendant when they lifted him off the floor, counsel elicited from Tsangaris that he did not see the keys in defendant’s hands or on the floor at the time of arrest and did not know where they were recovered or where they were before the arrest (RA 84-85). Moreover, counsel specifically used these inconsistencies in summation to attack the detective’s credibility and undermine the People’s case (RA 145). He expressly pointed out to the jury the discrepancy over the first visit (RA 148-149), and argued that because of the inconsistencies in the detectives’ testimony about the recovery of the keys, the jury could not know beyond a reasonable doubt where the keys were found (RA 147) (“because of the inconsistency, you cannot find beyond a reasonable doubt where those keys were found . . . and you can’t say they weren’t 97 there before he was placed on the ground”). Because counsel not only elicited but forcefully argued that the inconsistencies were highly favorable to the defense, defendant can show neither that his representation was lacking in this respect, or that he was prejudiced by counsel’s conduct. See People v. Parson, __ N.Y.3d __, 2016 N.Y. Slip Op. 4654 (June 14, 2016) (“This Court will not engage in the supposition and conjecture required to evaluate defendant's criticism of the scope of counsel's cross-examination . . . .”). Finally, a review of the record as a whole reveals that counsel’s performance was more than competent. Pretrial, counsel argued vigorously against the introduction of any of defendant’s prior crimes, including his five felony convictions (RA 2-21); repeatedly contended that the parole warrant should not be mentioned at trial and that the prosecutor should be barred from introducing the contents of the ex-girlfriend’s call, resulting in the preclusion of any mention that the warrant was a parole warrant or any mention of the ex-girlfriend’s reference to a gun (RA 30-50, 52-57); and expertly voir dired the jury on concepts related to the trial (A296-310). At trial, counsel cross-examined the People’s witnesses at length in order to show that defendant was not the only one with access to the car, and that the weapon could just as readily have belonged to his ex-girlfriend’s adult stepson as defendant. He elicited that neither detective knew where the keys were prior to the time they were recovered and neither ever saw the keys in defendant’s hands (RA 93, 84); that the stepson was present at the house when the police arrested defendant, but that, just like defendant, the police had not encountered him in their prior visit (RA 98 80, 83, RA 90-91, 98-99); that the stepson was familiar with the key fob for the car, while the detective could not figure it out (RA 94-95); that no evidence tied the backpack in which the gun was found to defendant (RA 96, 97, 114-115); and that the forensic experts did not test relevant pieces of evidence, like the backpack and plastic bag in which the gun was found and the ammunition that accompanied the gun (RA 100, 104-116). He even got Det. Herlihy to admit that he had testified falsely, or at least inaccurately, on direct examination at this trial (RA 88). In addition, prior to summations, counsel requested, and was granted, three specific and significant instructions: a limiting instruction with regard to the warrant (RA 67, 78, RA 185A-185B), an adverse inference charge with regard to Det. Tsangaris’s lost memo book (RA 131-135), and a full circumstantial evidence charge explaining to the jury the need to eliminate all reasonable inferences of innocence. Indeed, it was only by dint of counsel’s vigorous efforts over two days that he was able to convince the court to give the circumstantial evidence charge. After counsel had argued in favor of the charge at great length, the court denied the application (RA 120-133), but, the next day, counsel renewed the motion and cited precedent from this Court, ultimately persuading the trial court to deliver that highly favorable instruction to the jury (RA 135-139, RA 186-187). Counsel also argued to the court that the prosecutor should not be allowed to argue the truth of the contents of the portion of the ex-girlfriend’s phone call that came in – that defendant was returning to the location in his car (RA 127-128). This caused the court to inform the prosecutor of these boundaries and ensure that she would not make such an argument (RA 129). 99 In summation, counsel drew the favorable testimony he had elicited together and persuasively argued for an acquittal. While repeatedly reminding the jury of the People’s burden of proof beyond a reasonable doubt, he emphasized to the jury that “[n]o one testified at this trial that they saw Everett McMillan driving that car. No one testified in this trial that they saw Everett McMillan touch that gun, and no one at this trial testified that they saw Everett McMillan touch that backpack” (RA 141). He also pointed out to the jury that the backpack in which the gun was found was never connected to defendant, that the detectives and forensics experts missed key pieces of evidence that could have, but did not, tie defendant to the gun or the back pack, and that although defendant owned the car, the backpack could have belonged to anyone (RA 142-143), such as his stepson, who also had access to the car (RA 147). He also argued that the People, to satisfy their burden, had to show dominion or control not just over the car, but over the actual weapon (RA 145). Counsel also effectively anticipated prosecution arguments, such as that counsel was improperly engaging in speculation about other possible people who could have owned the gun (RA 144), and argued that defendant would not have so quickly acknowledged that he owned the car if he knew there was a gun in the backpack (RA 150). Finally, he encouraged the jury to listen closely to the adverse inference and circumstantial evidence instructions he had been granted by the court in the pre- charge conference (RA 149, 151). Finally, counsel ably represented defendant in the sentencing process. He argued vehemently against the use of defendant’s prior convictions to enhance his 100 sentence, maintaining that the People were required to, and had not, shown the constitutionality of those convictions (RA 190-224), and argued that the tolling period that allowed older convictions to come within the ambit of the persistent felony offender statute was unconstitutional (RA 231-232) He then argued to the court that the evidence of guilt was not strong and that many of defendant’s prior convictions were quite old, essentially from his youth, and should not be given great weight (RA 241-243). Based on the record as a whole, then, there is no question that counsel provided effective representation, despite the impediments created by defendant himself. Similarly, defendant cannot show prejudice from any conduct of counsel. 101 CONCLUSION For the reasons set forth above, the order of the Appellate Division should be affirmed. Respectfully submitted, RICHARD A. BROWN District Attorney Queens County By: ____________________________ John M. Castellano Assistant District Attorney ROBERT J. MASTERS JOHN M. CASTELLANO Assistant District Attorneys of Counsel July 19, 2016 102