| People v Concepcion |
| 2010 NY Slip Op 00701 [69 AD3d 956] |
| January 26, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Reynaldo Concepcion, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas S. Burkaof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling J.),rendered July 18, 2007, convicting him of criminal possession of a weapon in the second degree,criminal possession of a controlled substance in the third degree, and assault in the third degree,upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after ahearing, of that branch of the defendant's omnibus motion which was to suppress physicalevidence.
Ordered that the judgment is affirmed.
After a suppression hearing, the Supreme Court concluded that the People failed to establishthat the defendant consented to a search of his vehicle, from which the police seized a quantity ofcocaine, but that the cocaine would have been inevitably discovered during an inventory search.However, as the People correctly concede, the inevitable discovery doctrine may not be appliedto primary evidence, that is, the very cocaine recovered from the defendant's vehicle (seePeople v Turriago, 90 NY2d 77, 86 [1997]; People v Stith, 69 NY2d 313, 318[1987]; People v Solano, 148 AD2d 761, 763 [1989]). Nevertheless, contrary to theSupreme Court's conclusion, the People carried their "heavy burden" of establishing thevoluntariness of the defendant's consent to search his vehicle (see People v Gonzalez, 39NY2d 122, 128 [1976]). Considering the totality of the circumstances, while the defendant wasin custody and handcuffed to a bar in an interview room, he had not resisted when brought intopolice custody, had freely given oral and written statements after being afforded Mirandawarnings (see Miranda v Arizona, 384 US 436 [1966]), and was specificallyinformed that he had the right to refuse to consent to the search (see People v Gonzalez,39 NY2d at 128-130). Although the defendant signed a written consent form that had not beencompleted to indicate, for example, the property to be searched, he had been advised that thepolice were seeking permission to search his van. Accordingly, on this alternative basis (cf.People v Ryan, 12 NY3d 28, 31 n [2009]), the defendant was not entitled to the suppressionof the cocaine recovered from his vehicle.
The defendant was afforded meaningful representation (see People v Henry, 95NY2d 563, 565 [2000]).[*2]
The defendant's remaining contentions are unpreservedfor appellate review, and we decline to review them in the exercise of our interest of justicejurisdiction. Santucci, J.P., Dickerson, Eng and Chambers, JJ., concur.