Opinion
698 KA 18-01098
10-07-2022
The PEOPLE of the State of New York, Respondent, v. Carlos L. DAVID, Defendant-Appellant.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (GUY A. TALIA OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (GUY A. TALIA OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of two counts of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ), defendant contends that Supreme Court erred in refusing to suppress two handguns found in the center console of the vehicle he had operated because the guns were recovered during an unlawful inventory search. We reject defendant's contention. " ‘Following a lawful arrest of the driver of an automobile that must then be impounded, the police may conduct an inventory search of the vehicle’ " ( People v. Nichols , 175 A.D.3d 1117, 1119, 106 N.Y.S.3d 532 [4th Dept. 2019], lv denied 34 N.Y.3d 1018, 114 N.Y.S.3d 769, 138 N.E.3d 498 [2019], quoting People v. Johnson , 1 N.Y.3d 252, 255, 771 N.Y.S.2d 64, 803 N.E.2d 385 [2003] ). Here, the suppression hearing testimony established that it is the policy of the Rochester Police Department to tow a vehicle and conduct an inventory search when, following a traffic stop, there is no licensed driver present. Defendant had no valid driver's license and he was the sole occupant of the vehicle. Thus, the police properly decided to tow it (see People v. Hayden-Larson , 179 A.D.3d 1549, 1550, 118 N.Y.S.3d 880 [4th Dept. 2020], lv denied 35 N.Y.3d 970, 125 N.Y.S.3d 26, 148 N.E.3d 490 [2020] ; People v. Wilburn , 50 A.D.3d 1617, 1618, 856 N.Y.S.2d 767 [4th Dept. 2008], lv denied 11 N.Y.3d 742, 864 N.Y.S.2d 401, 894 N.E.2d 665 [2008] ). The record does not give rise to the inference that "the [corresponding] inventory search was a mere pretext to uncover incriminating evidence; rather, the testimony established that the [officer]’s ‘intention for the search was to inventory the items in the vehicle’ " prior to having it towed ( People v. Morman , 145 A.D.3d 1435, 1436, 43 N.Y.S.3d 619 [4th Dept. 2016], lv denied 29 N.Y.3d 999, 57 N.Y.S.3d 721, 80 N.E.3d 414 [2017], quoting People v. Padilla , 21 N.Y.3d 268, 273, 970 N.Y.S.2d 486, 992 N.E.2d 414 [2013], cert denied 571 U.S. 889, 134 S.Ct. 325, 187 L.Ed.2d 158 [2013] ; see People v. Tardi , 28 N.Y.3d 1077, 1078-1079, 44 N.Y.S.3d 366, 66 N.E.3d 1084 [2016] ). We therefore conclude that the inventory search was valid and the court properly refused to suppress the physical evidence recovered from the vehicle (see Nichols , 175 A.D.3d at 1119, 106 N.Y.S.3d 532 ; People v. Huddleston , 160 A.D.3d 1359, 1360-1361, 76 N.Y.S.3d 294 [4th Dept. 2018], lv denied 31 N.Y.3d 1149, 83 N.Y.S.3d 430, 108 N.E.3d 504 [2018] ; Wilburn , 50 A.D.3d at 1618, 856 N.Y.S.2d 767 ).
Defendant failed to preserve for our review his further contention that he was denied a fair trial based upon the cumulative effect of improper remarks during the prosecutor's summation (see generally People v. Britt , 34 N.Y.3d 607, 616, 122 N.Y.S.3d 570, 145 N.E.3d 207 [2019] ; People v. Shire , 77 A.D.3d 1358, 1359, 908 N.Y.S.2d 305 [4th Dept. 2010], lv denied 15 N.Y.3d 955, 917 N.Y.S.2d 115, 942 N.E.2d 326 [2010] ). In any event, we conclude that none of the alleged improper remarks were so pervasive or egregious, individually or cumulatively, as to deprive defendant of a fair trial (see People v. Lundy , 165 A.D.3d 1626, 1628, 85 N.Y.S.3d 665 [4th Dept. 2018], lv denied 32 N.Y.3d 1174, 97 N.Y.S.3d 588, 121 N.E.3d 215 [2019] ).
We do not address defendant's contention that reversal is required pursuant to People v. O'Rama , 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991) inasmuch as defense counsel withdrew that contention at oral argument of this appeal. Finally, we have reviewed defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment.