| People v Tandle |
| 2010 NY Slip Op 02827 [71 AD3d 1176] |
| March 30, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anthony Tandle, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Robert H. Middlemiss and AndrewR. Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Freehill, J.),rendered March 21, 2008, convicting him of criminal possession of a controlled substance in thefirst degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review thedenial, after a hearing, of that branch of the defendant's omnibus motion which was to suppressphysical evidence and his statements to law enforcement officials.
Ordered that the judgment is affirmed.
On duty at approximately 11:05 p.m. on August 1, 2007, two New York State Troopers weretraveling westbound on State Route 17 in Orange County in a marked troop car when theyobserved a green Lincoln Town Car traveling in the "slow lane" cross the "fog line" more thantwo times with its right side tires, causing half of the car to cross onto the shoulder. Aftercrossing the "fog line," the car would then drift back toward its lane. This driving behavioroccurred for approximately one half of one mile.
The Troopers pulled the car over, noticed the odor of an alcoholic beverage coming from thecar, and asked the driver, the defendant, to exit the car and walk to the front of the troop car. Oneof the Troopers, Trooper Cirigliano, noticed that the defendant stumbled several times whilewalking. Trooper Cirigliano conversed with the defendant and, during the conversation, thedefendant failed to make eye contact, stuttered his words, had glassy eyes, impaired speech, andwas uneasy on his feet. Trooper Cirigliano said that the defendant had to be instructed to comeback toward the shoulder portion of the roadway at least twice, as he was stumbling toward theroadway. Thereafter, the defendant stated that he had ingested 1½ grams of cocaine earlier.
Believing that the defendant was impaired, Trooper Cirigliano then spoke with the twopassengers and determined that neither had a valid driver's license. Since there was no validdriver, Trooper Cirigliano requested the next available tow and began to conduct an inventory ofthe car.
While conducting the inventory of the car, the Trooper found white pills, which he believedwere a controlled substance. While searching the trunk, Trooper Cirigliano noticed a large boxcontaining [*2]a digital scale and a large plastic bag containingchildren's clothing. As he searched through the children's clothing, Trooper Cirigliano found apackage containing a white chunky substance. Based on his experience, he believed thesubstance was crack or crack cocaine.
After being advised of his rights pursuant to Miranda v Arizona (384 US 436[1966]), the defendant stated that the package contained "drugs." The substance contained in thepackage tested positive for cocaine and weighed approximately 299 grams.
The defendant was indicted for, inter alia, criminal possession of a controlled substance inthe first degree. After a suppression hearing, the County Court denied that branch of thedefendant's omnibus motion which was to suppress the physical evidence and his statements.Subsequently, the defendant pleaded guilty to criminal possession of a controlled substance inthe first degree. He now appeals.
The credibility determinations of a hearing court are accorded great deference on appeal, andwill not be disturbed unless clearly unsupported by the record (see People v Martinez, 58AD3d 870, 870 [2009]; People v Jackson, 65 AD3d 1164, 1165; People vRivera, 59 AD3d 467 [2009]). The record supports the hearing court's finding that theTroopers lawfully stopped the defendant's car (see Vehicle and Traffic Law §1128 [a]; § 1131; People v Parris, 26 AD3d 393 [2006]). The defendant'sstatement to the Trooper that he had ingested cocaine earlier was made during a temporaryroadside detention pursuant to a routine traffic stop. Thus, the hearing court properly denied thatbranch of the defendant's omnibus motion which was to suppress the statement (see People vParris, 26 AD3d at 394-395; People v Myers, 1 AD3d 382, 383 [2003]; see alsoPeople v Mathis, 136 AD2d 746, 747 [1988]). The hearing court also properly denied thatbranch of the defendant's omnibus motion which was to suppress his subsequent statementswhich were made following Miranda warnings. Since his prior statement that he hadingested cocaine was not improperly elicited in violation of his Miranda rights, thisstatement could not have tainted his statements made subsequent to the Mirandawarnings (see People v Howard, 285 AD2d 560, 561 [2001]; cf. People vPaulman, 5 NY3d 122 [2005]; People v Chapple, 38 NY2d 112 [1975]).
Contrary to the defendant's contention, the inventory search was proper under the facts here(see People v Galak, 80 NY2d 715 [1993]; People v Johnson, 1 NY3d 252[2003]; People v Banton, 28 AD3d 571 [2006]; People v Cochran, 22 AD3d 677[2005]; People v Salazar, 225 AD2d 804 [1996]). The search which resulted in thediscovery of the cocaine also was proper (see People v Blasich, 73 NY2d 673, 678[1989]; see also People v Belton, 55 NY2d 49, 53-55 [1982]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Covello, J.P., Miller, Chambers and Lott, JJ., concur.