| People v Borrell |
| 2008 NY Slip Op 02855 [49 AD3d 890] |
| March 25, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JulioBorrell, Also Known as Julio Cesar Borrell, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y., (John M. Castellano, JeanetteLifschitz, and Ushir Pandit of counsel), for respondent.
Motion by the appellant, among other things, for leave to reargue his application for a writ oferror coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, adecision and order of this Court dated June 21, 2004 (People v Borrell, 8 AD3d 583[2004]), affirming two judgments of the Supreme Court, Queens County, rendered June 11,1998, under indictment No. 3794/94, and December 10, 1998, under indictment No. 4841/94,respectively. The application was determined by decision and order dated April 24, 2007. Theappellant's prior motions for leave to reargue were determined by decisions and orders on motiondated June 20, 2007 [2007 NY Slip Op 72099(U)] and September 14, 2007 [2007 NY Slip Op78078(U)].
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
Ordered that the branch of the motion which is for leave to reargue the appellant's applicationfor a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellatecounsel, a decision and order of this Court dated June 21, 2004 (People v Borrell, 8AD3d 583 [2004]), affirming two judgments of the Supreme Court, Queens County, renderedJune 11, 1998, under indictment No. 3794/94, and December 10, 1998, under indictment No.4841/94, respectively, is granted, and the motion is otherwise denied; and it is further,
Ordered that upon reargument, the decision and order dated April 24, 2007 [39 AD3d 871] isrecalled and vacated, and the following is substituted therefor:
Application by the appellant for a writ of error coram nobis to vacate, on the ground ofineffective assistance of appellate counsel, a decision and order of this Court dated June 21, 2004(People v Borrell, 8 AD3d 583 [2004]), affirming two judgments of the Supreme Court,Queens County, rendered June 11, 1998, under indictment No. 3794/94, and December 10, 1998,under indictment No. 4841/94, respectively.[*2]
Ordered that the application is granted and the decisionand order of this Court dated June 21, 2004, is recalled and vacated, and the following issubstituted therefor:
Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Eng,J.), rendered June 11, 1998, convicting him of robbery in the first degree (three counts), burglaryin the second degree, criminal possession of a weapon in the third degree (three counts), criminalpossession of a controlled substance in the third degree, and criminal possession of a weapon inthe fourth degree (two counts) under indictment No. 3794/94, upon a jury verdict, and imposingsentence, and (2) a judgment of the same court (Roman, J.), rendered December 10, 1998,convicting him of robbery in the first degree (six counts), assault in the first degree, criminalpossession of a weapon in the second degree, and criminal possession of a weapon in the thirddegree under indictment No. 4841/94, upon a jury verdict, and imposing sentences of: 12½to 25 years for each of the defendant's convictions of robbery in the first degree on counts one,two, three, four, five, and six of the indictment; 7½ to 15 years for his conviction of assaultin the first degree on count seven of the indictment; 7½ to 15 years for his conviction ofcriminal possession of a weapon in the second degree on count eight of the indictment; and3½ to 7 years for his conviction of criminal possession of a weapon in the third degree oncount nine of the indictment, with the sentences on counts one, two, four, five, six, seven, andeight of the indictment to run concurrently with each other but consecutively to the sentenceimposed on count three. The appeals bring up for review the denial, after a hearing (Cooperman,J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment rendered June 11, 1998 is modified, on the law, (1) by vacatingthe conviction of criminal possession of a weapon in the third degree under count eight ofindictment No. 3794/94, and the convictions of criminal possession of a weapon in the fourthdegree under counts nine and ten of indictment No. 3794/94, and dismissing those counts of thatindictment, and (2) by vacating the convictions of robbery in the first degree and burglary in thesecond degree under counts one, two, three and four of indictment No. 3794/94; as so modified,the judgment rendered June 11, 1998 is affirmed, that branch of the defendant's omnibus motionwhich was to suppress physical evidence seized from his apartment is granted, and a new trial isordered on the charges of robbery in the first degree and burglary in the second degree undercounts one, two, three and four of indictment No. 3794/94; and it is further,
Ordered that the judgment rendered December 10, 1998 is modified by providing that thesentences imposed on counts three and six of indictment No. 4841/94 shall run concurrently witheach other and consecutively to the sentences imposed under the remaining counts of thatindictment; as so modified, the judgment is affirmed.
Contrary to the defendant's contention on appeal, the Supreme Court properly admittedevidence seized from his person and his vehicle at the time of his arrest (see People v Knapp,52 NY2d 689, 694-695 [1981]; People v Hughes, 138 AD2d 523, 524 [1988]).Moreover, the Supreme Court properly found that, under the circumstances, the marital privilegedid not apply to the [*3]defendant's communications with his wife(see Matter of Vanderbilt [Rosner—Hickey], 57 NY2d 66, 73 [1982]; People vPatterson, 39 NY2d 288, 304 [1976], affd 432 US 197 [1977]; cf. People vFediuk, 66 NY2d 881 [1985]).
However, the Supreme Court should have granted that branch of the defendant's omnibusmotion which was to suppress the physical evidence seized from his apartment. The police werenot authorized to conduct a warrantless search of the defendant's apartment when the keyprovided to them by the defendant's estranged wife proved to be non-functioning (see Peoplev Yalti, 76 AD2d 847 [1980]). Thus, the evidence obtained as a result of the search shouldhave been suppressed (id.). Accordingly, the convictions supported by this evidence mustbe vacated, and the counts of indictment No. 3794/94 relating to possession of weaponsrecovered from the search of the defendant's apartment must be dismissed (see CPL470.20 [3]; People v Rossi, 80 NY2d 952 [1992]; cf. People v Perkins, 189AD2d 830 [1993]).
Furthermore, since the evidence of distinctive clothing recovered during the search shouldalso have been suppressed, and the clothing provided significant support for the identification ofthe defendant as the masked man responsible for the robberies and burglary charged underindictment No. 3794/94, the convictions with respect to those counts must be vacated, and a newtrial is required on those counts.
The Supreme Court erred when it directed that the sentence imposed on count three ofindictment No. 4841/94, run consecutively to the sentence imposed on count six. Since theconvictions under those counts both arose from a single transaction, the sentences imposed onthose counts must run concurrently with each other (see People v Ramirez, 89 NY2d 444,451 [1996]). Nonetheless, we deem it appropriate to direct that the concurrent sentences imposedon counts three and six run consecutively to the sentences imposed on the remaining counts ofthat indictment (id. at 454).
The defendant's remaining contentions, including those raised in his supplemental pro sebrief, are without merit. Mastro, J.P., Rivera, Ritter and Miller, JJ., concur.