People v Jennings

[*1] People v Jennings 2018 NY Slip Op 50008(U) Decided on January 3, 2018 Supreme Court, New York County Conviser, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 3, 2018
Supreme Court, New York County

The People of the State of New York

against

Frederick Jennings, Defendant.



1909/2017



New York County District Attorney Cyrus R. Vance Jr. (Brendan Tracy, of counsel) for the People.

The Legal Aid Society (Thomas Klein, of counsel) for the Defendant.
Daniel P. Conviser, J.

The Defendant is charged with one count of Attempted Criminal Possession of a Weapon in the Second Degree and two counts of Attempted Criminal Possession of a Weapon in the Third Degree. A hearing was ordered to determine whether a search warrant obtained by the police leading to the recovery of a firearm was tainted by the prior conduct of parole officers who executed a search of the Defendant's apartment. Parole Officer Kimberly Williams was the only witness who testified at the hearing. The Court finds her testimony to be credible. For the reasons set forth below the Court finds that the initial search of the Defendant's apartment by parole officers unlawfully tainted the subsequent acquisition of the search warrant and the seizure of the firearm. The motion to suppress the firearm seized in the execution of the warrant is therefore granted.

STATEMENT OF FACTS

Parole Officer Kimberly Williams, a 16-year employee of the Department of Corrections and Community Supervision ("DOCCS"), testified that she is a parole officer assigned in New York County. Her responsibilities involve supervising persons who have been released from custody but are still serving sentences for their crimes. Parolees are required to abide by conditions such as living at an approved residence, going to school or work, attending mandated programs, maintaining a curfew, avoiding narcotics use, avoiding possessing dangerous weapons and avoiding committing crimes.[FN1] She said that in 2017 she was supervising, on average, about [*2]70-80 parolees. Parolees supervised by DOCCS are also required to meet with parole officers and agree to subject themselves to home visits and searches. Officer Williams said that as part of her duties having supervised over 500 parolees, she had conducted home visits during which she has recovered many types of contraband.

Upon release from prison, it is customary for parolees to sign a document referred to as a "Certificate of Release", containing the conditions the parolee is stipulating to as part of his release. The People introduced into evidence a Certificate of Release purported to have been signed by the Defendant on May 3, 2016. Officer Williams said this was the same document signed by all persons released on parole. Among other provisions, the Certificate of Release provided that:

I Frederick Jennings [here, on the form, there is blank space where Mr. Jennings' name was typed] voluntarily accept Post-Release supervision. I fully understand that my person, residence and property are subject to search and inspection. I understand that Post-Release Supervision if [SIC] defined by these Conditions of Release and all other conditions that may be imposed upon me by the Board of Parole or it [SIC] representatives. I understand that my violation of these conditions mat [SIC] result in the revocation of my release.

Included in the enumerated conditions of release was condition No.4, which provided: "I will permit my Parole Officer to visit me at my residence . . . and I will permit the search and inspection of my person, residence and property." A second page attached to the main Certificate of Release included additional conditions and was entitled: "Application for Conditional Release to Parole Supervision". It contained a signature line signed by Mr. Jennings indicating he had received a "copy of this application".

From May to August of 2016, the Defendant lived with his mother in Brooklyn. When the Defendant's mother moved to 2150 Madison Ave., #5A in New York County, the Defendant moved with her, with DOCCS' approval, and his parole supervision was transferred to Manhattan. Ms. Williams was assigned to supervise the Defendant in September of 2016. Officer Williams said the Defendant was required to reside at the approved address and, among other conditions, was also required to not possess any weapons, maintain a curfew, continue to report as directed by Officer Williams and stay away from "negative peers". Officer Williams said that when she was first assigned to supervise the Defendant she went over the conditions of release with Mr. Jennings in her office. The Defendant indicated that he understood the conditions.

Officer Williams stated that notations of conversations between her and the individuals she supervises are maintained in a "Chrono sheet". Concerning her initial meeting with the [*3]Defendant, she made a chrono notation of having gone over the conditions of the Defendant's release with him. The Defendant's curfew was the only specific condition she memorialized speaking with Mr. Jennings about on the Chrono sheet. Officer Williams was uncertain about whether, if a defendant refuses to sign parole release paperwork provided by DOCCS, parole release will be denied. She was not present when Mr. Jennings signed the release and said he had signed it while in prison about two days before his release. She was not aware of what, if any, conversations occurred between the Defendant and a parole officer before the release was signed.

Prior to the date of the search at issue in this case in May of 2017, Officer Williams had conducted approximately seven visits at the location. The apartment consisted of four bedrooms, a kitchen and a bathroom. The Defendant's bedroom was located furthest from the entrance in the rear of the apartment at the end of the hallway. On these prior occasions, she testified that she had been present in the bedroom with the Defendant.

Prior to the search, Officer Williams requested that a warrant be issued to take the Defendant into custody for failing to comply with the terms of his release. The request for the warrant was premised on several factors which were documented by Officer Williams in a Violation of Release Report. Specifically, Officer Williams alleged that the Defendant had used marijuana without authorization; that he did not enter and participate in drug treatment; that he failed to report to Officer Williams' office; that he was not at his approved residence during curfew hours; and that he had changed residences without prior approval. Officer Williams stated that she had made numerous attempts to contact the Defendant. A warrant for the Defendant dated April 27, 2017 was issued by Supervising Parole Officer M. Carter. According to Officer Williams: "The warrant authorizes me to search for the individual and bring him into custody".[FN2]

On May 11, 2017, at approximately 11:10 P.M., Officer Williams along with approximately 10 other parole officers went to 2150 Madison Ave. #5A to execute the warrant. Officer Williams was the first person to enter the apartment. The Defendant's mother, who had spoken with Officer Williams on prior occasions, answered the door and was informed by Officer Williams that she was there looking for the Defendant. Officer Williams and the other officers were allowed in the apartment. The Defendant's mother indicated that Mr. Jennings was not in the apartment and said she did not know where he was. Officer Williams explained that she and the other officers were required to search the apartment to verify whether the Defendant was there.

The officers divided into groups and proceeded to search the apartment. Officer Williams went to the Defendant's bedroom with her supervisor, Senior Parole Officer Medina, and another officer. When they entered there were four males present, none of whom was the Defendant. The Defendant's mother had informed Officer Williams that the Defendant's friends were in the room. Officer Williams testified that she noticed a strong smell of marijuana. The people in the room were taken to the kitchen so the room could be searched with a view to determining whether the Defendant was present.

Officer Williams and Officer Medina then decided to search the closet from opposite [*4]sides, she taking the right side and he the left. The closet was poorly lit and full of clothing. In addition to hanging clothes, there were bags of clothing and shoes at the bottom of the closet. Officer Williams moved some clothing so she could determine whether the Defendant was hiding in the closet. She said she had found individuals on prior occasions seeking to avoid apprehension that way.

To better view the area where she believed the Defendant might be hiding Officer Williams had to separate the clothing hanging in the closet. When she did this she felt a heavy object inside a jacket pocket. Officer Medina also felt the jacket, rubbing the inner and outer portion of it where the heavy object was. Once she determined that the Defendant was not present, Officer Williams asked Officer Medina if he felt the same thing she did. He responded yes. Officer Williams interpreted this to mean that Officer Medina had also concluded that the object in the jacket was a firearm. Officer Williams had recovered firearms on prior searches in a similar manner. She also said the jacket's exterior was soft and that she had observed the Defendant wearing the jacket on a prior visit he made to the parole office. Officer Williams then testified:

He [Officer Medina] then pulled the jacket so we could see from the light and just like held open the pocket. And inside we saw a plastic bag. And then we opened the plastic bag, and at that point, like, I am pushing from the inside of the pocket to push whatever out, and then, at that point, that's when we could see that it was a gun.[FN3]

Officer Williams also identified a photograph she took of the gun as "the firearm that we had taken out of the pocket of the jacket and opened the plastic bag that it was in".[FN4] She testified that when she took the photograph, "I was like holding it [the gun] and pulling the plastic bag down so I could take a picture of it. So it wasn't taken completely out of the bag".[FN5]

Once the officers verified the presence of a gun they secured the apartment by handcuffing all of the occupants and contacted the NYPD. Officer Medina allowed the gun to drop back in the plastic bag and left it in the jacket pocket. Officer Williams said she had no place to secure the weapon and that it was normal for her under such circumstances to contact the NYPD who would look after the weapon and the individuals in the apartment.

The Defendant's mother provided a phone number for the Defendant to Officer Williams. When she spoke to the Defendant she informed him that the occupants of the apartment were in custody and that he had to come to the location to answer for what was found in his room. The Defendant came to the building and was taken into custody. Officer Williams spoke to NYPD officers and explained what had happened. A search warrant was later obtained by NYPD who returned to the apartment and recovered the firearm. Officer Williams testified that her goal in conducting the search at all times was to locate the Defendant and that at no point did she also have the goal of recovering contraband.

CONCLUSIONS OF LAW

The Defendant Did Not Execute A Valid Consent to Search His Apartment

Law enforcement need not obtain a search warrant where a defendant voluntarily consents to a search. The People bear a "heavy burden" to establish voluntariness. People v. Whitehurst, 25 NY2d 389 (1969). "Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle." People v. Gonzalez, 39 NY2d 122, 128 (1976). An important, although not dispositive factor in assessing whether consent is truly voluntary, is whether the Defendant is in custody at the time a purported consent is given. Id., at 128-130. Such custody militates against a finding of consent. A second factor which is relevant is whether a defendant was advised of his right to refuse consent. Id., at 130.

In this Court's view, it is clear that the Defendant did not consent to the search here. That is true for a number of reasons. First, the standard consent form he signed, by virtue of its multiple typographical errors, was not fully comprehensible. The third of the four groups of words separated by periods quoted supra is not a sentence and does not make sense as it is written. The final sentence provided that Mr. Jennings' supervision "mat" be revoked if he did not comply with his mandated conditions. It is important to note, moreover, that this is not just the form Mr. Jennings signed. It is apparently the form all parolees had to sign, at least in May of 2016.

Second, it is not clear that the form Mr. Jennings signed (assuming the typographical errors were corrected) was a consent to search. Its terms in that regard were ambiguous. It provided at certain points that Mr. Jennings "understood" that certain things would happen upon his release, not that he explicitly consented to them. At other points, however, it provided that he would "permit" the search of his apartment. To the extent the form indicated the Defendant consented to a search of his apartment upon release, however, it also did not appear to seek a free and unconstrained choice by him. It rather appeared to require a parolee's consent to search as a condition of release from prison. As noted supra the second page of the form is entitled "Application for Conditional Release to Parole Supervision". The first page provided that a "violation of these conditions mat [SIC] result in the revocation of my release". One of those conditions, in a preceding sentence, was that the parolee "fully understand" that his "person, residence and property were subject to search and inspection" without any stated limitation.

It is clear to this Court, however, that DOCCS generally does not have the authority to deny an offender release from prison to post-release supervision following the service of a determinate term. That is not to say parole officers do not have extensive powers over parolees or that DOCCS should not inform parolees of those powers and have a parolee sign a form acknowledging the receipt of such information. There are also circumstances under which it has been held that DOCCS can delay an inmate's release from prison following the completion of a determinate sentence, because the inmate is placed in a residential treatment facility or the release of a sex offender must be delayed to meet statutorily required housing conditions. See, e.g., People ex rel. Johnson v. Superintendent, Fishkill Correctional Facility, 47 Misc 3d 984 (Dutchess County Supreme Court 2015 [Forman, J.]). An offender on post-release supervision, of course, can also be incarcerated for violating a post-release supervision requirement. But the initial release from prison to post-release supervision after the completion of a determinate [*5]sentence under the Penal Law generally arises by operation of law, not DOCCS consent.[FN6]

One of the important factors in assessing whether a consent is voluntary is whether the Defendant is in custody. The Defendant here was not only in custody. He was two days away from release, a release which was preceded by the request that he sign the consent form. Another important factor in assessing voluntariness is whether the Defendant was informed that he had the right to refuse to consent to a search. But there was no evidence presented at the hearing that any such information was presented to the Defendant. In addition, although the primary purpose of the Certificate of Release form was apparently to provide a range of disclosures, there was no disclosure on the form which indicated a parolee need not sign it. The evidence at the hearing also did not provide any information to the Court about what transpired at the time the Certificate of Release was signed. The Court does not know, for example, whether the Defendant was told he had to sign the form to be released, told nothing or told his failure to sign it would have no consequence. That is the final point. The "heavy burden" to establish consent here was on the People. The People did not meet that burden.

Assuming Defendant Consented to the Search, That Consent

Did Not Expand the Authority DOCCS Already Possessed

In People v. Huntley, 43 NY2d 175, 181 (1977) the Court held that a parolee's home may be searched by his parole officer without a warrant but the search must be supported by probable cause. Additionally, the reasonableness of a search:

must turn on whether the conduct of the parole officer was rationally and reasonably related to the performance of the parole officer's duty. It would not be enough necessarily that there was some rational connection; the particular conduct must also have been substantially related to the performance of duty in the particular circumstances. 43 NY2d at 181.

The Huntley Court also held that the standard consent form signed by the Defendant in the case did not impact the Court's determination to uphold the search (discussed immediately infra) or constitute "an unrestricted consent to any and all searches whatsoever". The Court rather determined that the consent "merely parallels, by way of confirmation, the right of the parole officer which we uphold namely, the right to conduct searches rationally and substantially related to the performance of his duty". Id. at 182-183. Thus, the Huntley Court essentially held that the unrestricted consent form signed in that case did not, in fact, expand the authority the Division of Parole (now DOCCS) otherwise possessed. Assuming the consent here was valid, the same principle would apply. Under Huntley, any consent provided by the Defendant in the Certificate of Release was a "parallel" "confirmation" of DOCCS' authority, not an expansion of it.

The Gun Seizure Exceeded the Authority DOCCS Had

At the Time They Entered the Apartment to Search for the Defendant

In Huntley, a parole warrant authorized a parole officer to seize the Defendant after he had violated his parole. A search of the parolee's apartment was also held to be valid because the search was conducted to uncover a "possible explanation for his otherwise unexplained failure to report". 43 NY2d at 182. See also, People v. Taylor, 97 AD3d 1139 (4th Dept 2012) (relying on the same rationale to justify a search of a parolee's apartment in connection with an attempt to locate him).

On the other hand, searches of a parolee's home have been found unreasonable when they are conducted to aid other law enforcement investigations, rather than implemented in connection with an offender's parole supervision. See People v. Candelaria, 63 AD2d 85 (1st Dept 1978); People v. Tony, 30 Misc 3d 867 (Bronx County 2010); People v. Mackie, 77 AD2d 778 (4th Dept 1980).

The record here is clear: Officer Williams went to the Defendant's apartment to apprehend him. Officer Williams alleged that Mr. Jennings had used marijuana without authorization; did not enter and participate in drug treatment; failed to report to Officer Williams' office; was not at his approved residence during curfew hours; and had changed residences without prior approval. A warrant for the Defendant was issued by Supervising Parole Officer M. Carter. The warrant authorized the Defendant to be brought into custody. It did not authorize a search of the apartment. Officer Williams testified that she understood that the warrant authorized her to search for and apprehend the Defendant. She did not testify that she understood the warrant to also authorize her to search the apartment. She also consistently testified that the only purpose of her search of the apartment was to locate the Defendant, not contraband or evidence which might lead to the discovery of the Defendant's whereabouts. Officer Williams, moreover, was familiar with the apartment. She testified she had visited it on seven prior occasions. She was an experienced parole officer, who obviously understood that contraband might be found there.

Even after entering the apartment and finding that Mr. Jennings was not there, Officer Williams testified, her search of the Defendant's closet was made solely to locate him — not contraband. As the Huntley Court held, it is not enough in assessing whether a parole officer's actions in searching a parolee's apartment have some "rational connection" to the officer's duties. "The particular conduct [of the parole officer] must also have been substantially related to the performance of duty in the particular circumstances." As the People cogently described the lawful duty being performed here:

Officer Williams, along with her fellow Parole Officers, went to the Defendant's home address on the evening of May 11, 2017 for one purpose, and one purpose only — to search for the Defendant.[FN7]

That is not to say that DOCCS would not have been able to enter the Defendant's apartment under the circumstances here and conduct a search of it. Certainly, there would be a reasonable argument that parole officers, given what they knew of the Defendant's conduct and criminal history, could have gone to the Defendant's apartment both to search for him and to [*6]search the apartment. But that is not what they did. Nor did Officer Williams testify that she searched the bedroom closet based on the odor of marijuana she had detected or that the marijuana odor had anything to do with DOCCS conduct in the case.

This Court cannot fill in the gaps in the hearing record. The Court cannot create a lawful duty — that is, to search the apartment to look for contraband — when the testimony at the hearing clearly indicated that was not the duty DOCCS sought to perform. See People v. Bermudez, 49 Misc 3d 381, 390 (Monroe County Court 2015) (the justification for a parolee search must be articulated in a suppression hearing record).

DOCCS Was Not Permitted to Recover the Gun

Based on a "Plain Touch" Exception to the Warrant Requirement

New York law does not recognize a "plain touch" exception to the warrant requirement which would allow a warrantless search of a suspect's property when an officer feels an object which he believes to be contraband. People v. Diaz, 81 NY2d 106 (1993). The Diaz Court held that the "plain view" doctrine which allows the seizure of contraband in plain view under certain circumstances should not be extended to allow for a "plain touch" exception to the warrant requirement for a number of reasons. First, the Court held that while the plain view doctrine simply allows law enforcement to seize items they already see, a "plain touch" exception would authorize not only a seizure but also a search. A person who has contraband secreted in a pocket, the Court noted, has a reasonable expectation of privacy which does not arise for items in plain view.

The Diaz Court noted that "the very concept of 'plain touch' is a contradiction in terms: the idea of plainness cannot logically be associated with information concerning a concealed item which is available only through the sensory perceptions of someone who touches it". The Court further opined that information obtained by touching an item, for example, through clothing is less reliable than seeing it and that information obtained through touching would in some circumstances predictably require a degree of additional probing beyond an initial touch and invite the blurring of the line between a touch and a further intrusion. 81 NY2d at 112-113.

The parole officers here, upon feeling the hard object, took multiple actions prior to securing the scene and notifying the NYPD. First, they "pulled" the jacket (apparently moving it from the position where it was hanging). Next, they opened the jacket pocket. Then they looked inside. Upon seeing the plastic bag, they opened it. Upon seeing the gun they pushed the gun partially outside the bag. Then they took a picture of the gun. Finally they let the gun drop back into the bag and the pocket. None of these actions were justified under a "plain touch" exception to the warrant requirement.

Feeling the "Hard Object" Did Not Otherwise Allow a Warrantless Search

There is next the argument that even though the search of the jacket was not encompassed in DOCCS' lawful duties with respect to the Defendant, and even though it was not authorized based on a "plain touch" rule, Officer Williams nevertheless had probable cause to search the jacket upon feeling the hard object. Assuming such probable cause existed, however, there was no exception to the warrant requirement which authorized the search.

In the case of In re Marrhonda G., 81 NY2d 942 (1993) a police officer felt the outline of a handgun, including the gun's butt and trigger guard, in a bag belonging to a suspected runaway [*7]minor who had placed the bag on the floor and was sitting 15 feet away from it at the time the officer picked it up to move it out of the way. The officer verified with a second officer that they both believed there was a gun in the bag. The officers then searched the bag and recovered weapons and ammunition. The court held that the search of the bag was unlawful and said that since the bag was not in the grabbable area of the suspected runaway, the police could have simply detained the bag while obtaining a search warrant. An analogous situation arose here.

There is also no valid argument here that the DOCCS' actions were justified by exigent circumstances or a concern for officer safety. Approximately 11 parole officers entered the Defendant's apartment. The persons initially present in the bedroom had been removed from it when the search was conducted. Moreover, DOCCS actually did leave the gun in the pocket and asked the NYPD to apply for a warrant after the unlawful seizure. Obviously, they would not have done that had they believed leaving the gun in the pocket would pose a threat to their safety.The People argue that the holding in People v. McMillan, 29 NY3d 145 (2017) supports their position here. In that case, detectives effectuating an arrest of the Defendant\parole violator were told by the Defendant's girlfriend that he had a gun in his unoccupied car. The police then searched the car and recovered a firearm in a backpack. The Court found that: "The Detectives had a high degree of individualized suspicion based on a tip from a known individual — who correctly identified defendant's vehicle and its location — indicating that defendant had a firearm in his vehicle, the recent arrival of which was corroborated by the absence of the vehicle during the detective's earlier visit and the warmth of the hood". 29 NY3d at 149. The Court also noted that parolees had a reduced expectation of privacy.

The People argue that the feeling of the hard object by the parole officers here was analogous to the information the police had in McMillan. In this Court's view, that argument fails primarily for one simple reason. In McMillan the police were apparently entitled to search the Defendant's car primarily because of the automobile exception to the warrant requirement. There is no analogous exception for the search of a jacket in a person's bedroom closet. Even assuming the quantum of information available to the police in McMillan and the parole officers here regarding the presence of a gun was the same, therefore, that identical quantum of evidence would lead to two different conclusions. In McMillan, the police were apparently entitled to search the car because of the automobile exception. Here, the same quantum of information would, at most, allow the police to apply for a search warrant based on probable cause. The automobile exception exists because of the lesser expectation of privacy in an automobile and a vehicle's inherent mobility. People v. Blasich, 73 NY2d 673 (1989). Obviously, those factors are absent in a bedroom closet.

Of course, one important way in which the facts in Marrhonda G. differ and the facts in McMillan are applicable here is the Defendant's status as a parolee with a reduced expectation of privacy. Given that the search here, however, was plainly not related to DOCCS' aim of searching for the Defendant, that reduced expectation of privacy cannot be factored into the analysis to make a search which would otherwise be plainly invalid, lawful. That is the principle outlined in cases like People v. Candelaria, People v. Tony and People v. Mackie, supra. In those cases, searches were held invalid where a parolee's status was used as justification to conduct searches which would have otherwise been unlawful, where the Defendant's status as a parolee was not relevant to the justifications for the searches. That is the principle here. Parolees [*8]do not walk the earth with a reduced expectation of privacy under any circumstance in which they encounter law enforcement. In order for a search of a parolee's residence for contraband to be validly undertaken because of a parolee's status, "the particular conduct [here, the search] must also have been substantially related to the performance of duty in the particular circumstances." People v. Huntley, supra. Where that condition does not exist, as it plainly did not exist here, a parolee must be treated like any other person under the Fourth Amendment.

The Warrant Obtained Subsequent to the Unlawful Seizure

Did Not Immunize DOCCS' Conduct

What DOCCS should have done upon feeling an object which they believed was a gun was to secure the scene and contact the NYPD to apply for a search warrant. That is, in fact, what they did. The application for the warrant, however, followed the unlawful seizure of the gun from the pocket and the placement of the gun back into the pocket. Under those circumstances, the subsequently obtained warrant cannot be used to immunize the initial unlawful seizure.

A similar situation arose in People v. Martinez, 121 AD3d 423 (1st Dept 2014). There, the police unlawfully searched a seized cell phone, found an incriminating photograph and then applied for a warrant to look for incriminating photographs on the phone. The Court held that the "decision to seek the warrant was prompted by what [the police] had seen during initial entry" following "an unlawful confirmatory search" and thus could not serve to make the initial search valid. In suppressing the photographs, the Court also noted that the "inevitable discovery" doctrine did not apply since "the evidence sought to be suppressed is the very evidence obtained in the illegal search". 121 AD3d at 424 (quotations omitted) (bracket in original).

The same circumstance exists here. The warrant the NYPD obtained here followed the unlawful seizure of the gun. The fact that the gun was put back into the jacket pocket and that a warrant was subsequently issued did not immunize DOCCS from the consequences of the initial unlawful seizure.

Conclusion This Court understands that there is an argument here that, when the forest is viewed rather than the individual trees, the parole officers in this case acted reasonably. Parole officers executing a valid search of the Defendant's apartment detected what they believed was a gun. They then took the next logical step: they looked into the jacket to confirm their suspicions without first seeking a warrant. It is also true that the lawful intrusions parole officers made here: entering the Defendant's apartment and his bedroom and touching his jacket, exceeded the unlawful actions they took in confirming their belief that the hard object they initially detected was a gun. Controlling authority, however, in this Court's view, mandates that the Defendant's motion be granted. The Court holds that DOCCS' actions preceding the obtaining and executing of the search warrant tainted the subsequently obtained warrant and require suppression of the gun. The Defendant's suppression motion is therefore granted.

January 3, 2018

Daniel Conviser, A.J.S.C. Footnotes

Footnote 1:"Parole" under New York law is different than "post-release supervision" in that parole is a status offenders have when they are granted release from an indeterminate sentence of imprisonment by the parole board while "post-release supervision" refers to the mandated portion of an offender's sentence which is served in the community following the service of the incarceratory portion of a determinate term. Offenders under both systems, however, are supervised by parole officers employed by DOCCS. The terms "parole" and "post-release supervision" are generally used interchangeably here, except as otherwise indicated. Mr. Jennings in this case was subject to post-release supervision (rather than parole).

Footnote 2:October 12, 2017 hearing transcript, p. 20.

Footnote 3:Id., p. 35

Footnote 4:Id., p. 38

Footnote 5:Id.

Footnote 6:See generally, Penal Law § 70.45 (outlining the requirement for post-release supervision following the service of a determinate sentence).

Footnote 7:People's Affirmation in Respondent to Defendant's Suppression Motion, November 22, 2017, p. 10 (transcript citation omitted).