| People v Glanton |
| 2010 NY Slip Op 03565 [72 AD3d 1536] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RomarisGlanton, Appellant. (Appeal No.1.) |
—[*1] Richard M. Healy, District Attorney, Lyons (David V. Shaw of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (Stephen R. Sirkin, J.), rendered May30, 2008. The judgment convicted defendant, upon his plea of guilty, of criminal possession of acontrolled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,the plea is vacated, that part of the motion seeking to suppress defendant's statements is grantedand the matter is remitted to Wayne County Court for further proceedings on the indictment.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him, upon hisplea of guilty, of criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]). Contrary to the contention of defendant, County Court did not err indenying that part of his motion seeking to suppress physical evidence obtained during a search ofhis person. Defendant correctly concedes that the officer in fact had probable cause to do so(see generally People v Chestnut, 43 AD2d 260, 261-262 [1974], affd 36 NY2d971 [1975]; People v Black, 59AD3d 1050, 1051 [2009], lv denied 12 NY3d 851 [2009]), and we conclude underthe circumstances of this case that the limited intrusion of the officer in reaching underneathdefendant's clothing did not render the scope of the search unreasonable (see People v Butler, 27 AD3d365, 369 [2006], lv dismissed 6 NY3d 893 [2006]; cf. People v Mitchell, 2 AD3d145, 147-148 [2003]).
We agree with defendant, however, that the court erred in denying that part of his motionseeking to suppress statements that he made to the police. As the People candidly concede,defendant's initial statements were the product of custodial interrogation and were made beforedefendant received Miranda warnings (see People v Morales, 25 AD3d 624, 625 [2006], lv denied6 NY3d 815 [2006]). The People contend, however, that defendant's subsequent statements tothe police, made after defendant waived his Miranda rights, were attenuated from theinitial statements and thus were not tainted by those initial statements that were illegallyobtained (see People v Samuels, 11AD3d 372, 372-373 [2004], lv denied 4 NY3d 802 [2005]; see generally Peoplev Bethea, 67 NY2d 364, 367-368 [1986]). The People failed to raise that contention beforethe suppression court, [*2]however, and it therefore is notproperly before us (see generally People v Morales, 292 AD2d 253, 254 [2002]). In anyevent, we conclude that the People's contention is without merit (see Morales, 25 AD3dat 625; cf. Samuels, 11 AD3d at 372-373). We therefore conclude that the plea in appealNo. 1 must be vacated "[i]nasmuch as the erroneous suppression ruling may have affecteddefendant's decision to plead guilty" (People v Flowers, 59 AD3d 1141, 1143 [2009]; see generallyPeople v Grant, 45 NY2d 366, 379-380 [1978]).
Further, the record establishes that the plea agreement in appeal No. 1 was contingent upondefendant's plea of guilty to one count of the indictment at issue in that appeal and to one countof the indictment at issue in appeal No. 2. Thus, the plea in appeal No. 2 must be vacated as well(see generally People v Fuggazzatto, 62 NY2d 862 [1984]), and both matters remitted toCounty Court for further proceedings on the indictments. Present—Scudder, P.J.,Sconiers, Green and Gorski, JJ.