People v Kelly

People v Kelly 2011 NY Slip Op 01733 Decided on March 10, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 10, 2011
Saxe, J.P., Friedman, Acosta, DeGrasse, Richter, JJ.
4489 5733/06

[*1]The People of the State of New York, Respondent,

v

Gary Kelly, Defendant-Appellant



 
Steven Banks, The Legal Aid Society, New York (Steven J.
Miraglia of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jared
Wolkowitz of counsel), for respondent.

Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered August 1, 2007, as amended August 24, 2007, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender whose a prior felony conviction was a violent felony, to a term of 6½ years, unanimously affirmed.

The court properly denied defendant's suppression motion. The police properly seized evidence under the plain view doctrine (see People v Diaz, 81 NY2d 106, 110 [1993]; Horton v California, 496 US 128, 136-137 [1990]; Arizona v Hicks, 480 US 321, 324-329 [1987]). The police arrested defendant and the codefendant in a car minutes after they sold drugs to an undercover officer. An officer saw a clear lip balm container on the floor of the car, and noticed that it held what appeared to be yellow ziplock bags of crack cocaine. The incriminating nature of this evidence was immediately apparent to the trained and experienced officer (see e.g. People v Batista, 261 AD2d 218 [1999], lv denied 94 NY2d 819 [1999]). The officer immediately recognized that the container was of a type commonly used to hold narcotics, and saw "yellow zips" inside the clear container, which he recognized as packaging for cocaine. The record fails to support defendant's assertion that the officer did not detect the presence of contraband until after he seized the evidence.

The lip balm container of drugs was also admissible under the automobile exception to the warrant requirement (see People v Blasich, 73 NY2d 673 [1989]; People v Ellis, 62 NY2d 393, 398 [1984]). Defendant and the codefendant got into a car immediately after completing an undercover sale, and the arresting officer immediately recognized the lip balm container as a common device for carrying drugs. Accordingly, it was reasonable to infer that the car would contain drugs.

Defendant also argues that the lip balm container and its contents should have been excluded at trial as inadmissible as evidence of an uncharged crime. Since defendant objected to this evidence on different grounds from those raised on appeal, his present claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the [*2]merits. This evidence linked defendant to the crime because
the container matched a container used in making the undercover sale, and it was not unduly prejudicial.

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 10, 2011

CLERK