| People v McCorkle |
| 2013 NY Slip Op 07835 [111 AD3d 557] |
| November 26, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Lamont McCorkle, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli ofcounsel), for respondent.
Judgment, Supreme Court, New York County (Laura A. Ward, J.), renderedSeptember 24, 2012, convicting defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the fourth degree, and sentencing him to a term ofsix months, with 4½ years probation, unanimously affirmed. The matter is remittedto Supreme Court, New York County, for further proceedings pursuant to CPL 460.50(5).
The court providently exercised its discretion in reopening the suppression hearing,after both sides had rested and submitted legal arguments but before any decision on themerits had been made, to allow the People's witness to provide additional testimonyestablishing the legality of the police conduct (see People v Brujan, 104 AD3d 481 [1st Dept 2013], lvdenied 21 NY3d 1014 [2013]). "A request to present additional evidence in this typeof situation should be addressed to the court's discretionary power to alter the order ofproof within a proceeding (see People v Whipple, 97 NY2d 1, 6 [2001]), ratherthan being governed by the restrictions on rehearings set forth in People vHavelka (45 NY2d 636 [1978])" (id. at 481).
Defendant argues that since the reopening came after defense counsel had pointedout a deficiency in the People's case, there was a heightened risk of tailored testimony.However, "one of the purposes of requiring timely and specific motions and objections, arequirement applicable to suppression hearings, is to provide the opportunity for cure"(People v Cestalano, 40AD3d 238, 239 [1st Dept 2007], lv denied 9 NY3d 921 [2007] [citationsand internal quotation marks omitted]). It would be illogical to require a defendant, forpreservation purposes, to point out a deficiency at a time when it can be corrected, butthen preclude the People from correcting the deficiency. In Whipple, the Court ofAppeals disapproved of such a notion, which it described as "a sort of 'gotcha' principleof law" (97 NY2d at 7).
Under the circumstances here, we do not find that there was a significant risk oftailoring, particularly since the officer was subject to cross-examination regardingwhether he had discussed his testimony with the prosecutor. In any event, "we believethat the hearing court was more than up to the task of evaluating the risk of manufacturedtestimony" (People vAlvarez, 51 AD3d 167, 179 [2008], lv denied 11 NY3d 785 [2008]).[*2]
The court properly denied defendant'ssuppression motion. There is no basis for disturbing the court's credibilitydeterminations. When an officer saw defendant with an open beer bottle in a publicplace, in violation of the Open Container Law (Administrative Code of City of NY§ 10-125 [b]), the officer had authority to arrest defendant (see People v Lewis, 50 AD3d595 [1st Dept 2008], lv denied 11 NY3d 790 [2008]). The officer did notrecover the contraband that is at issue on appeal until after defendant was under arrest. Itis irrelevant whether the officer subjectively decided to arrest defendant after discoveringother contraband, not at issue on appeal, as the result of a frisk that defendant challengesas unlawful. An "arresting officer's state of mind (except for the facts that he knows) isirrelevant to the existence of probable cause" and "his subjective reason for making thearrest need not be the criminal offense as to which the known facts provide probablecause" (Devenpeck v Alford, 543 US 146, 153 [2004]; see also People vRobinson, 97 NY2d 341, 349 [2001]). Since there was a valid custodial arrest for theopen container violation, the officer's search of defendant incident to that arrest wasproper, and the subsequent fruits were lawfully obtained (see People v Rodriguez, 84AD3d 500, 501 [1st Dept 2011], lv denied 17 NY3d 861 [2011]).Concur—Mazzarelli, J.P., Acosta, Moskowitz, Manzanet-Daniels and Gische, JJ.