| People v Olavarrueth |
| 2010 NY Slip Op 05790 [74 AD3d 1361] |
| June 29, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Roberto Olavarrueth, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Valerie A. Livingston, RichardLongworth Hecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Adler,J.), rendered April 2, 2009, convicting him of grand larceny in the fourth degree (three counts)and scheme to defraud in the first degree, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing, of that branch of the defendant's omnibus motionwhich was to suppress physical evidence.
Ordered that the judgment is affirmed.
The charges against the defendant arise from several incidents in which the defendantallegedly offered to assist several complainants in obtaining various documents such as SocialSecurity cards and driver's licenses, received money from the complainants, and never providedthe promised services. Prior to trial, the defendant moved, inter alia, to suppress physicalevidence seized from his apartment. At a hearing, the People adduced evidence that on October16, 2006 several police officers and firefighters responded to the defendant's apartment inresponse to a report of a fire and smoke condition. Two police witnesses testified that, on theevening of the fire, they observed evidence that led them to believe that the fire was suspicious,including a charred broiler pan on the living room floor that was next to a burn mark. Theofficers also found a partly burned candle on the kitchen floor laying next to several burnedmatches, a knife, and a photograph of an unknown person. One of the officers also observedseveral documents on a living room table, consisting of a New York State driver's license and aNew York State Department of Motor Vehicles driver's license application for persons other thanthe defendant. The officer took several photographs of those documents. The hearing evidencealso established that at the time of the October 16, 2006 fire, the police were not investigatingthe allegations that form the basis of the instant indictment. In December 2006 the police beganan investigation after one of the complainants filed a police report, ultimately leading to theinstant charges.
The Supreme Court erred in denying that branch of the defendant's omnibus motion whichwas to suppress the photographs of the documents taken by the police on the night of the fire. Attrial, three complainants testified that they met with the defendant, gave him cash for thepromised services, and never received the promised documents, any legal assistance, or a refundof their money. The People also introduced into evidence, inter alia, a New York State driver'slicense and learner's permit belonging to two of the testifying complainants, as well as evidencethat those items were recovered in the investigation [*2]of thedefendant for an unrelated altercation. The documents that were photographed at the defendant'sapartment were not reasonably related to the exigencies at hand and, although in plain view, boreno indicia of criminality (see People v Christianson, 57 AD3d 1385, 1387 [2008];People v Guins, 165 AD2d 549, 552-553 [1991]; see also People v Mais, 71AD3d 1163, 1166 [2010]; People v Desmarat, 38 AD3d 913, 915 [2007]; cf. People vColbert, 60 AD3d 1209, 1211-1212 [2009]; People v Spencer, 272 AD2d 682, 683[2000]).
However, this error was harmless beyond a reasonable doubt, as the evidence of thedefendant's guilt, without reference to the error, was overwhelming, and there is no reasonablepossibility that the alleged error might have contributed to the defendant's conviction (seePeople v Crimmins, 36 NY2d 230, 237 [1975]).
The defendant failed to preserve for review his contentions that some of the photographswere improperly admitted as evidence of prior uncharged crimes, and that the Supreme Courtshould have provided a limiting instruction with respect to those photographs (see CPL470.05 [2]; People v Holmes, 47 AD3d 946 [2008]; People v Silverman, 239AD2d 445 [1997]). In any event, any error in connection with the admission of these photos alsowas harmless.
The defendant's remaining contention is without merit. Skelos, J.P., Santucci, Dickerson andLeventhal, JJ., concur.