| People v Geddes-Kelly |
| 2018 NY Slip Op 05195 [163 AD3d 716] |
| July 11, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jaleel Geddes-Kelly, Appellant. |
Paul Skip Laisure, New York, NY (Hannah Zhao of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Joseph N. Ferdenzi, and Danielle S. Fenn of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (John B.Latella, J.), rendered September 29, 2015, convicting him of criminal possession of a forgedinstrument in the second degree and criminal possession of marihuana in the fifth degree, upon ajury verdict, and imposing sentence. The appeal brings up for review, as limited by thedefendant's brief, the denial, after a hearing (Steven Paynter, J.), of that branch of the defendant'somnibus motion which was to suppress physical evidence of the credit cards that were recoveredfrom inside the defendant's wallet.
Ordered that the judgment is modified, on the law, by vacating the conviction of criminalpossession of a forged instrument in the second degree, vacating the sentence imposed thereon,and dismissing that count of the indictment; as so modified, the judgment is affirmed, and thatbranch of the defendant's omnibus motion which was to suppress physical evidence is granted tothe extent of suppressing the credit cards that were recovered from inside the defendant'swallet.
On September 24, 2013, at approximately 10:15 p.m. police officers pulled over a vehicledriven by the defendant for various traffic infractions. During the vehicle stop, one of the policeofficers, while looking into the open passenger side window, observed on the floor of the vehiclenear the defendant's feet a clear plastic bag containing what appeared to be marihuana. Thedefendant was asked to step out of the vehicle. After frisking him for weapons and contraband,the police officer placed the defendant in handcuffs. He then took the defendant's wallet out ofhis pocket to search for pedigree information. When the police officer opened the defendant'swallet, he found three credit cards inside the wallet, which he concluded were forged.
The defendant was subsequently charged with, inter alia, three counts of criminal possessionof a forged instrument in the second degree (one for each credit card) and criminal possession ofmarihuana in the fifth degree. Following a suppression hearing, the hearing court denied thatbranch of the defendant's omnibus motion which was to suppress the physical evidence,reasoning in part that the credit cards had been recovered as the result of a proper search incidentto a lawful arrest.
[*2] During the ensuing jury trial,at the close of the People's case, the Supreme Court granted the defendant's motion to dismisstwo of the three counts charging the defendant with criminal possession of a forged instrument inthe second degree on the ground that the People failed to present sufficient evidence to establishthat two of the three credit cards found in the defendant's wallet were forged. The defendantsubsequently was convicted of one count of criminal possession of a forged instrument in thesecond degree and criminal possession of marihuana in the fifth degree.
We agree with the defendant that the Supreme Court erred in denying that branch of hisomnibus motion which was to suppress the credit cards that were recovered from inside hiswallet. While the police officer's search of the defendant's pockets was justified since it arosefrom a search incident to a lawful arrest (see People v Inge, 90 AD3d 675, 676 [2011]; People vParker, 306 AD2d 543 [2003]; People v Cooper, 241 AD2d 553, 554 [1997]), thesubsequent search of the defendant's wallet was akin to searching a small bag or change purseand was unlawful. "The protections embodied in article I, § 12 of the New YorkState Constitution serve to shield citizens from warrantless intrusions on their privacy interests,including their personal effects" (Peoplev Jimenez, 22 NY3d 717, 719 [2014]; see People v Gokey, 60 NY2d 309, 312[1983]). "[E]ven a bag within the immediate control or 'grabbable area' of a suspect at the time ofhis [or her] arrest may not be subjected to a warrantless search incident to the arrest, unless thecircumstances leading to the arrest support a reasonable belief that the suspect may gainpossession of a weapon or be able to destroy evidence located in the bag" (People v Anderson, 142 AD3d713, 715-716 [2016] [internal quotation marks and citations omitted]). The proof adduced atthe suppression hearing failed to establish the presence of such circumstances (see People v Evans, 84 AD3d 573,574-575 [2011]; People v Chisolm,7 AD3d 728, 729 [2004]; People v Branch, 259 AD2d 556, 557 [1999]; People vRosado, 214 AD2d 375, 376 [1995]).
Furthermore, the People's current contention that the search of the defendant's wallet wasanalogous to a post-arrest inventory search conducted at a police station is improperly raised forthe first time on appeal (see People v Johnson, 64 NY2d 617, 619 n 2 [1984]; Peoplev Dodt, 61 NY2d 408, 416 [1984]). Accordingly, the defendant's conviction of criminalpossession of a forged instrument in the second degree, premised upon the recovery of thesubject credit card, must be vacated and that count of the indictment must be dismissed. In viewof the foregoing, we do not reach the defendant's alternative challenges to his conviction ofcriminal possession of a forged instrument in the second degree.
However, contrary to the defendant's contention, the evidence was legally sufficient toestablish his guilt of criminal possession of marihuana in the fifth degree. "A person is guilty ofcriminal possession of marihuana in the fifth degree when he knowingly and unlawfullypossesses . . . marihuana in a public place . . . and such marihuana isburning or open to public view" (Penal Law § 221.10 [1]). Viewing the evidence inthe light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621[1983]), we find that it was legally sufficient to establish beyond a reasonable doubt that thedefendant knowingly and unlawfully possessed marihuana in a public place and that suchmarihuana was open to public view (seePeople v Jackson, 18 NY3d 738, 744-745 [2012]). The police officer testified at trialthat as he approached the open window of the defendant's vehicle, he smelled the odor ofmarihuana, and he subsequently observed the bag of what appeared to be marihuana in plainview on the floor of the vehicle near the defendant's feet, thereby establishing that it was open topublic view (see People v Jackson, 18 NY3d at 747-748). Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict of guilt as to criminal possession of marihuana in thefifth degree was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). Mastro, J.P., Cohen,Connolly and Brathwaite Nelson, JJ., concur.