People v. Lawrence

180 A.D.3d 1070

120 N.Y.S.3d 391

The PEOPLE, etc., Respondent,

v.Damien LAWRENCE, Appellant.

2017-08036

Ind. No. 2040/15

Supreme Court, Appellate Division, Second Department, New York.

Argued - November 4, 2019

February 26, 2020

Paul Skip Laisure, New York, N.Y. (Dina Zloczower and White & Case LLP [John H. Chung and Seok Ho (Richard) Kang ], of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Eugene J. Dirks of counsel), for respondent.

MARK C. DILLON, J.P., RUTH C. BALKIN, HECTOR D. LASALLE, BETSY BARROS, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Stephanie Zaro, J.), rendered June 29, 2017, convicting him of criminal possession of a forged instrument in the second degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Steven W. Paynter, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

On May 25, 2015, at approximately 2:00 a.m., the defendant, after having been involved in a motor vehicle accident, was arrested for driving while under the influence of alcohol. Upon being transported to a police station, the defendant refused to take a breathalyzer test, and he was then transported to the hospital for treatment of a lip laceration. Following the medical treatment, he was transported to a different police station for completion of the arrest processing. At the front desk of the station, a police officer removed everything from the defendant's pockets and then searched his wallet, discovering two credit cards in the defendant's name. The credit cards were later revealed to be forgeries.

The defendant was charged, inter alia, with two counts of criminal possession of a forged instrument in the second degree. In an omnibus motion, the defendant moved, inter alia, to suppress the seized credit cards. Following a suppression hearing, at which the defendant argued that the search of his wallet violated the Federal and State Constitutions because it was neither a lawful search incident to an arrest, a lawful inventory search, nor a lawful search on consent, the Supreme Court denied that branch of the omnibus motion which was to suppress the credit cards, finding that the search of the wallet and seizure of the credit cards was permissible.

Prior to jury selection, the defendant moved to reopen the suppression hearing. The defendant asserted that a detective's report supplied to his attorney after the hearing indicating that the detective knew, while the defendant was being treated in the hospital, that he would be charged with criminal possession of a forged instrument, was inconsistent with the arresting officer's hearing testimony that the credit cards were not discovered until the defendant was transported to the second police station to complete the arrest processing. The Supreme Court denied the defendant's motion to reopen the suppression hearing.

We reject the defendant's contention that the credit cards removed from his wallet were the result of either the search of a closed container without the requisite exigent circumstances or an improperly executed inventory search. Rather, the facts describe a lawful stationhouse inspection of an arrestee's...