Opinion
KA 01-00024
May 3, 2002.
Appeal from a judgment of Monroe County Court (Geraci, Jr., J.), entered September 5, 2000, convicting defendant after a jury trial of, inter alia, criminal possession of a controlled substance in the third degree.
HOWARD K. BRODER, ROCHESTER, FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (AMY I. MOLLOY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., HAYES, HURLBUTT, BURNS, AND LAWTON, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of criminal possession of a controlled substance in the third degree (Penal Law § 220.16), criminal possession of a controlled substance in the fourth degree (§ 220.09 [1]), criminally using drug paraphernalia in the second degree (§ 220.50 [2]) and unlawful possession of marijuana (§ 221.05). Defendant was sentenced as a second felony offender to concurrent terms of incarceration, the greatest of which is 7½ to 15 years.
We reject the contention of defendant that the search of his person was unlawful and that County Court therefore erred in refusing to suppress the physical evidence found in that search. The suppression court's ruling is based upon stipulated facts. Evidence thereafter admitted at trial cannot be considered in reviewing the propriety of the suppression court's ruling ( see People v. Wilkins, 65 N.Y.2d 172, 180). During their execution of a search warrant at a drug house in Rochester, the police discovered approximately 50 bags of cocaine in the living room, along with a shirt that contained "an identification card of defendant." In addition, they observed a number of individuals "scatter" throughout the house. Defendant was ultimately arrested in an upstairs bedroom. The police therefore had presumptive evidence of defendant's possession of the cocaine ( see § 220.25 [2]; People v. Snow, 225 A.D.2d 1031; People v. Miranda, 220 A.D.2d 218, lv denied 87 N.Y.2d 849; People v. Vega, 209 A.D.2d 220, 220, lv denied 85 N.Y.2d 944) and thus had probable cause to arrest defendant. The subsequent search of defendant's person was incident to a lawful arrest ( see United States v. Robinson, 414 U.S. 218, 235; People v. Weintraub, 35 N.Y.2d 351, 353-354; People v. Barclay, 201 A.D.2d 952, 952). Defendant's remaining contention is unpreserved for our review ( see CPL 470.05), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see 470.15 [6] [a]).