| People v Martin |
| 2008 NY Slip Op 02912 [50 AD3d 1169] |
| April 3, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jeffrey M.Martin, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
Mercure, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered February 23, 2007, convicting defendant upon his plea of guilty of the crimes ofcriminal possession of a controlled substance in the third degree and criminal possession of aweapon in the fourth degree.
Defendant was a passenger in a vehicle that was stopped for speeding by Officer StevenPickering in November 2005. When Pickering requested the driver's identification, the driverhanded him another person's license and a rental agreement that named a person who was not inthe car. The driver indicated that he had no way of reaching the person named in the rentalagreement. Inasmuch as the driver's eyes were red and glassy, the car smelled of alcohol and thedriver admitted to consuming alcohol earlier in the day, Pickering decided to administer fieldsobriety tests to the driver, which he passed. Meanwhile, Officer Steven Cook arrived on thescene and noticed a Styrofoam cup in the middle console, and another passenger admitted thatthe cup contained Hennessy cognac. Cook also confirmed that the photograph on the driver'slicense did not depict the driver, who was pacing nervously and refused to tell Cook the birthdate listed on the license. As a result, Cook placed the driver in handcuffs in the back of hispatrol car.
After obtaining identification cards—but not drivers' licenses—from defendantand the [*2]other passenger, Pickering asked them to step out ofthe car. Pickering then prepared to impound the vehicle because there was no available driver.Specifically, he searched it "for vehicle inventory . . . [and] to make sure there[were] no other open containers inside the vehicle." He looked under the seats, as well as in themiddle console, glovebox and trunk, and found a silver revolver under the front passenger's seat.At that point, defendant and the other passenger were also detained, and all three individualsdenied any knowledge of the weapon. As defendant was taken into custody, a small bag ofmarihuana fell from his clothing. In addition, a subsequent search revealed 20 bags of crackcocaine in his shoe.
Defendant was thereafter charged in an indictment with various crimes. Following denial ofhis motion to suppress, he pleaded guilty to criminal possession of a controlled substance in thethird degree and criminal possession of a weapon in the fourth degree. He was sentenced, inaccordance with the plea agreement, to an aggregate term of two years in prison to be followedby two years of postrelease supervision. Defendant now appeals, challenging the denial of hismotion to suppress the gun recovered from the car and the evidence recovered in the searchincident to his arrest for possession of the gun, i.e., the drugs found on his person. He does notdispute that the initial traffic stop of the vehicle was proper or that the passengers were properlyremoved from the vehicle (see e.g.People v Willette, 42 AD3d 674, 675 [2007], lv denied 9 NY3d 883 [2007]);rather, defendant's arguments are directed solely at the propriety of the search that led to thediscovery of the gun. In that regard, he argues that once the open container was observed and theofficers determined that there were no other open containers in plain view, the passengers shouldhave been given a citation and released. We conclude, however, that the police action insearching the vehicle was proper and, therefore, we affirm.
Initially, we agree with defendant that the People failed to submit any evidence that theinventory search was conducted pursuant to a standardized or established police agencyprocedure and, thus, it cannot be said that the gun was recovered pursuant to a permissibleinventory search (see People vJohnson, 1 NY3d 252, 256 [2003]; cf. People v Washington, 233 AD2d 684,686 [1996], lv denied 89 NY2d 1042 [1997]). Furthermore, absent any indication that " 'aweapon located within the vehicle present[ed] an actual and specific danger to the officer[s']safety,' " the search of the vehicle could not be justified on security grounds once the driver andpassengers exited the vehicle (People v Carvey, 89 NY2d 707, 711 [1997], quotingPeople v Torres, 74 NY2d 224, 231 n 4 [1989]; see People v Hackett, 47 AD3d 1122, 1124 [2008]). Nevertheless,it is well settled that "when the occupant of an automobile is arrested, the very circumstances thatsupply probable cause for the arrest may also give the police probable cause to believe that thevehicle contains contraband, evidence of the crime, a weapon or some means of escape"(People v Blasich, 73 NY2d 673, 678 [1989]). Moreover, "there is no inflexiblerequirement that the search concern only items relating to crimes for which the defendant isformally arrested . . . [T]he proper inquiry . . . is simply whether thecircumstances gave the officer probable cause to search the vehicle" (id. at 680-681;see People v Galak, 81 NY2d 463, 467 [1993]).
Here, apart from the driver presenting another person's license and a rental agreement withthe name of an individual who was not in the vehicle, the officers detected an odor of alcoholicbeverages emanating from the vehicle and observed a cup of alcohol located in plain view in thecenter console. In addition, the driver's eyes were red and glassy, and he indicated that he hadconsumed alcohol earlier in the day. Under these circumstances, the officers had probable causeto suspect a violation of Vehicle and Traffic Law § 1227, and the search of the vehicle foradditional open containers was proper (see People v Brooks, 23 AD3d 847, 848-849[*3][2005], lvs denied 6 NY3d 810, 811 [2006]; see also People v Parris, 26 AD3d393, 394 [2006], lv denied 6 NY3d 851 [2006]; cf. People v Bryant, 245AD2d 1010, 1012-1013 [1997]).
We further reject defendant's argument that his sentence was harsh and excessive.Defendant's remaining arguments are either waived by his plea of guilty or unpreserved (seePeople v Hansen, 95 NY2d 227, 230-232 [2000]; People v Folk, 43 AD3d 1229, 1230 [2007], lv denied 9NY3d 1033 [2008]; People v Sledge, 122 AD2d 293, 294 [1986]), and we decline toreverse in the interest of justice inasmuch as his claims lack merit (see People v Folk, 43AD3d at 1230; People v Wallace, 235 AD2d 645, 647 [1997], lv denied 89 NY2d1016 [1997]).
Cardona, P.J., Spain, Malone Jr. and Stein, JJ., concur. Ordered that the judgment isaffirmed.