| People v Wilcox |
| 2015 NY Slip Op 09457 [134 AD3d 1397] |
| December 23, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vEric L. Wilcox, Appellant. |
Timothy P. Donaher, Public Defender, Rochester, Phillips Lytle LLP, Buffalo (RyanA. Lema of counsel), for defendant-appellant.
Eric L. Wilcox, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.),rendered October 3, 2012. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a controlled substance in the third degree (two counts), criminalpossession of a controlled substance in the fifth degree, criminal possession of acontrolled substance in the seventh degree and unlawful possession of marihuana.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, defendant's motion to suppress tangible evidence is granted in part, counts one,three, six, and seven of the indictment are dismissed, and a new trial is granted on counttwo.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of two counts of criminal possession of a controlled substance in the third degree(Penal Law § 220.16 [1], [12]), and one count each of criminal possessionof a controlled substance in the fifth degree (§ 220.06 [5]), criminalpossession of a controlled substance in the seventh degree (§ 220.03) andunlawful possession of marihuana (§ 221.05). Defendant contends thatSupreme Court erred in refusing to suppress drugs seized by police officers from thejacket he was wearing at the time he was arrested pursuant to a warrant. We agree.
The record at the suppression hearing established that the officers receivedinformation that defendant was at a particular residential address, and they observeddefendant inside that residence, sleeping on a living room couch and wearing a blackleather jacket. The officers entered the residence, asked defendant to identify himself,and told defendant that he was under arrest. At that point, defendant began fumbling withhis jacket pocket, and a pill bottle fell out of the pocket onto the couch. The officershandcuffed defendant, and one of them examined the contents of the pill bottle. Theofficer suspected that the pill bottle contained heroin. Shortly thereafter, the officersremoved defendant's handcuffs in order to remove his jacket. After securing the jacket,the officers replaced the handcuffs on defendant and escorted him to the rear seat of theirpatrol car. One of the officers placed the jacket on the floor of the front seat of the patrolcar, where it remained while defendant was transported to the Public Safety Building.Defendant was taken to an interview room, and the jacket was searched in another roomat the Public Safety Building. A variety of drugs was discovered in the jacketpockets.
At the outset, we note that we may not address the People's contention that the courtproperly refused to suppress the drugs on the ground that defendant did not have anexpectation of privacy in the clothing that he was wearing, inasmuch as the People didnot rely on that theory at the suppression hearing, and the court did not deny suppressionon that ground (see People vThompson, 118 AD3d 922, 924 [2014]).
Contrary to the court's determination, we conclude that the warrantless search of[*2]defendant's jacket was not justified as a searchincident to a lawful arrest. "Under the State Constitution, to justify a warrantless searchincident to arrest, the People must satisfy two separate requirements. The first imposesspatial and temporal limitations to ensure that the search is not significantly divorced intime or place from the arrest . . . The second, and equally important,predicate requires the People to demonstrate the presence of exigent circumstances" (People v Jimenez, 22 NY3d717, 721-722 [2014] [internal quotation marks omitted]). We conclude that, here,neither requirement is satisfied. At the time the jacket was searched, defendant washandcuffed in an interview room at the Public Safety Building. "[T]he jacket had beenreduced to the exclusive control of the police[,] and there was no reasonable possibilitythat defendant could have reached it" (People v Morales, 126 AD3d 43, 46 [2015]). Nor was thereany exigency that would justify the warrantless search of the jacket in thesecircumstances (see id. at 47; Thompson, 118 AD3d at 924; see also People v Boler, 106AD3d 1119, 1123 [2013]). We therefore grant in part defendant's motion seeking tosuppress tangible evidence, i.e., the drugs seized from his jacket, and we reverse thoseparts of the judgment convicting him of the counts of the indictment charging him withpossessing those drugs, i.e., counts one, three, six and seven.
Count two, the only remaining count, charges defendant with knowingly andunlawfully possessing heroin with the intent to sell it pursuant to Penal Law§ 220.16 (1). The heroin that defendant was accused of possessing underthat count was found inside the pill bottle that fell out of defendant's jacket pocketshortly after the officers' entry into the living room. We conclude that the court properlydenied defendant's motion to the extent that it sought suppression of the heroin, whichwas lawfully seized incident to defendant's arrest (see People v Smith, 59 NY2d454, 458 [1983]). Viewing the evidence in light of the elements of the crime as chargedto the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we further conclude that the verdict oncount two is not against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). We nevertheless reverse the judgment ofconviction and grant a new trial on that count because the evidence of defendant's intentto sell, "although legally sufficient, was not overwhelming and was largely dependentupon" evidence of the quantity and variety of drugs unlawfully seized from defendant'sjacket (People v Chambers, 73 AD2d 976, 976 [1980]). We therefore concludethat the error in admitting that evidence was not harmless with respect to count two ofthe indictment (see generally People v Almestica, 42 NY2d 222, 227[1977]).
In view of our decision, we do not address the remaining contentions in defendant'smain and pro se supplemental briefs. Present—Centra, J.P., Peradotto, Lindley,Valentino and Whalen, JJ.