People v Allen

People v Allen 2012 NY Slip Op 09106 Decided on December 27, 2012 Appellate Division, Third 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 and Entered: December 27, 2012
104817

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

JAMIE D. ALLEN, Appellant.

Calendar Date: November 14, 2012
Before: Rose, J.P., Lahtinen, Spain, Kavanagh and McCarthy, JJ.


Kevin F. Guyette, Binghamton, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Rita
M. Basile of counsel), for respondent.

MEMORANDUM AND ORDER


Kavanagh, J.

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered October 6, 2011, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fourth degree.

On February 11, 2010, officers from the Broome County Drug Task Force executed a search warrant in the City of Binghamton, Broome County, which authorized the search of "7 EATON PLACE, APARTMENT # 8," an individual named Kendew Johnson and "ANYONE PRESENT DURING THE TIME OF EXECUTION OF THE WARRANT." As the police entered the premises to execute the warrant, defendant, who was with Johnson and another individual inside the apartment, fled to the rear of the apartment where he was apprehended near a window and placed in handcuffs. On the floor near defendant and the window, police found a plastic bag containing crack cocaine. Defendant was then searched and $326 was recovered from his person. After defendant was charged by indictment with criminal possession of a controlled substance in the third and fourth degrees, he moved to, among other things, suppress the cocaine found by the police on the apartment floor, as well as the money seized from his person after his arrest. A suppression hearing was held and the motion was subsequently denied. Thereafter, defendant pleaded guilty to criminal possession of a controlled substance in the fourth degree and was sentenced, as a second felony offender, to three years in prison, to be followed by three years of postrelease supervision. Defendant now appeals. [*2]

Defendant's sole contention on appeal is that County Court erred in denying his motion to suppress because a clause authorizing the search of "any person present" inside the apartment (CPL 690.15 [2]) was improperly included in the warrant, rendering the entire search warrant invalid. County Court found — and the People do not dispute — that probable cause did not exist for such a clause to be included in the search warrant. However, the court determined that the "any person present" provision could be severed from the rest of the warrant and the remainder of the search warrant was otherwise valid (see generally People v Mothersell, 14 NY3d 358 [2010]). In addition, the court found that the cocaine and money were recovered by the police, not as a result of the "any person present" clause, but because defendant attempted to flee once the police had legally entered the premises and the police subsequently discovered the cocaine in plain view near defendant.

"It is now settled law that when a search warrant is partially but not wholly invalid, only the fruits of the invalid portion need be suppressed" (People v Brown, 96 NY2d 80, 85 [2001]; see People v Hansen, 38 NY2d 17, 21-22 [1975]). Here, the search warrant was not used by the police as a pretext to search other individuals who might be in the apartment (see People v Hansen, 38 NY2d at 21-22; see also People v Paul, 96 Misc 2d 1085, 1090 [1978]), and the facts set forth in the search warrant application established that probable cause existed authorizing a search of the entire apartment (see People v Pinkney, 90 AD3d 1313, 1315-1316 [2011]; People v Bailey, 80 AD3d 999, 1001 [2011], lv denied 18 NY3d 856 [2011]). As such, the warrant without the "any person present" clause was valid, and provided the police with the legal authority to enter the apartment and search it. Once inside, they had the right to detain defendant when he attempted to flee. Only then, and not as a result of the search of defendant or "any person present," did the police discover the packet of cocaine in plain view on the apartment floor. Since defendant was the only person seen in that area of the apartment, probable cause existed for his arrest for possession of the cocaine. A search of defendant's person incident to that arrest was then properly performed by the police, and the money was recovered. Simply stated, the contraband that defendant seeks to suppress was seized, not pursuant to the "any person present" provision of the warrant, but as the result of defendant's actions once the police were legally inside the apartment. Therefore, County Court's decision denying defendant's motion to suppress is in all respects affirmed (compare People v Mothersell, 14 NY3d at 360-361).

Rose, J.P., Lahtinen, Spain and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed.