Opinion
1153 KA 16–01962
03-15-2019
The PEOPLE of the State of New York, Respondent, v. Joe N. SMITH, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BENJAMIN L. NELSON OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BENJAMIN L. NELSON OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea of criminal possession of a controlled substance in the fifth degree ( Penal Law § 220.06[5] ). The charge arose after a police officer, while on routine patrol in his marked police vehicle, observed defendant standing on an open front porch, holding taut a transparent bag the size of a golf ball. According to the officer, he could see the outline of what appeared to be small cocaine rocks in the bag, in the same packaging that he had seen many times in his experience. After the officer stopped his vehicle, defendant dropped the bag onto the front porch. On appeal, defendant contends that County Court erred in refusing to suppress tangible evidence, i.e., the bag of cocaine, and his statements to the police. We affirm.
Contrary to defendant's contention, we conclude that the court properly determined that defendant lacked standing to challenge the warrantless seizure of the drugs from the porch inasmuch as he demonstrated no "personal legitimate expectation of privacy" in the premises ( People v. Whitfield, 81 N.Y.2d 904, 905–906, 597 N.Y.S.2d 641, 613 N.E.2d 547 [1993] ; see generally People v. Ortiz, 83 N.Y.2d 840, 842, 611 N.Y.S.2d 500, 633 N.E.2d 1104 [1994] ).
Even assuming, arguendo, that defendant met his burden of establishing standing (see generally People v. Ramirez–Portoreal, 88 N.Y.2d 99, 108–109, 643 N.Y.S.2d 502, 666 N.E.2d 207 [1996] ; People v. Sylvester, 129 A.D.3d 1666, 1666–1667, 12 N.Y.S.3d 469 [4th Dept. 2015], lv denied 26 N.Y.3d 1092, 23 N.Y.S.3d 649, 44 N.E.3d 947 [2015] ), we conclude that the evidence establishes that defendant abandoned the bag of drugs and that his abandonment of the drugs was not caused by unlawful police conduct. "Property is deemed abandoned when the expectation of privacy in the object or place searched has been given up by voluntarily and knowingly discarding the property" ( Ramirez–Portoreal, 88 N.Y.2d at 110, 643 N.Y.S.2d 502, 666 N.E.2d 207 ; see People v. Brown, 148 A.D.3d 1562, 1564, 48 N.Y.S.3d 865 [4th Dept. 2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017] ; see also People v. Rainey, 110 A.D.3d 1464, 1466, 972 N.Y.S.2d 782 [4th Dept. 2013] ). Here, while the officer was standing on the public sidewalk, having just exited the patrol vehicle, defendant attempted to pass the bag of drugs to another person and, in doing so, dropped the bag to the floor of the porch. Defendant then walked away from the dropped bag, which was subsequently recovered by the officer. Inasmuch as defendant's abandonment of the bag containing cocaine was not precipitated by illegal police conduct, defendant had no right to object to the officer's seizure of that evidence, and thus the court properly refused to suppress the drugs (see Brown, 148 A.D.3d at 1564, 48 N.Y.S.3d 865 ).
Finally, defendant failed to preserve for our review his contention that the court erred in refusing to suppress his statements to the police on the ground that the police failed to obtain an express waiver of his Miranda rights (see People v. Harrison, 128 A.D.3d 1410, 1411, 8 N.Y.S.3d 530 [4th Dept. 2015], lv denied 26 N.Y.3d 929, 17 N.Y.S.3d 92, 38 N.E.3d 838 [2015] ). In any event, that contention lacks merit. "It is well settled that an explicit verbal waiver [of Miranda rights] is not required; an implicit waiver may suffice and may be inferred from the circumstances" ( People v. Jones, 120 A.D.3d 1595, 1595, 992 N.Y.S.2d 823 [4th Dept. 2014] [internal quotation marks omitted]; see People v. Sirno, 76 N.Y.2d 967, 968, 563 N.Y.S.2d 730, 565 N.E.2d 479 [1990] ; People v. Dangerfield, 140 A.D.3d 1626, 1627, 33 N.Y.S.3d 612 [4th Dept. 2016], lv denied 28 N.Y.3d 928, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016] ). We have reviewed defendant's remaining contention and conclude that it lacks merit.