People v. Aiello

• Decision Date: 21 September 1989
• Citation: 545 N.Y.S.2d 432,153 A.D.2d 988
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael AIELLO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 432

545 N.Y.S.2d 432

153 A.D.2d 988

The PEOPLE of the State of New York, Respondent, v. Michael AIELLO, Appellant.

Supreme Court, Appellate Division,

Third Department.

Sept. 21, 1989.

Paul L. Gruner (Denise Y. Dourdeville, of counsel), Kingston, for appellant.

Michael Kavanagh, Dist. Atty. (Matthew Tice, of counsel), Kingston, for respondent.

Before MAHONEY, P.J., and KANE, LEVINE, MERCURE and HARVEY, JJ.

LEVINE, Justice.

Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered July 18, 1988, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fourth degree.

Defendant was arrested on October 29, 1987 while seated in an automobile in the City of Kingston, Ulster County. City of Kingston police officers took him into custody pursuant to a parole violation arrest warrant and a bench warrant from New York City, the existence of which was made known to them by a police teletype. A pistol, ammunition and a hypodermic needle were found in the vehicle and glassine envelopes containing heroin and cocaine were taken from defendant's person. Defendant's apartment was searched pursuant to a search warrant, resulting in the seizure of additional drugs and drug paraphernalia. After being given Miranda warnings, defendant made incriminating admissions to the police.

Following indictment on various weapons and drug-related charges, defendant moved to suppress his confession and the evidence seized from his person and his apartment. After a hearing, County Court suppressed the evidence taken from defendant's apartment and denied the motion in all other respects. Defendant also moved to dismiss the fourth count of the indictment, charging commission of the crime of criminal possession of a controlled substance in the fourth degree, upon the ground that the evidence before the Grand Jury was insufficient to establish the offense. This motion was also denied by County Court. Thereafter, defendant pleaded guilty to the fourth count of the indictment in full satisfaction of all charges and received a bargained-for indeterminate sentence of 4 to 8 years' imprisonment. This appeal ensued.

The first ground for reversal asserted by defendant attacks County Court's denial of his motion to suppress his statement. At the suppression hearing, it was brought out that the bench warrant, concerning which the arresting officers had the teletype message, arose out of a then-outstanding criminal charge in New York City. Defendant now contends that his statement should have been suppressed because the police failed to inquire as to whether defendant was represented by counsel in that outstanding New York City criminal case before interrogating him (citing, inter alia, People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371). This argument is unavailing. First, the police credibly denied any awareness of the existence of the outstanding charge at the time of the arrest. Second, even if knowledge of the bench warrant should have put the arresting officers on notice of an outstanding charge, there is no evidence in the record, including defendant's testimony at the suppression hearing, establishing that he in fact was represented on the unrelated charge at the time of his arrest, a necessary element of the Bartolomeo rule (see, People v. Bartolomeo, supra, at 229, 440 N.Y.S.2d 894, 423 N.E.2d 371). Consequently, the record is insufficient to establish a basis for review of this particular objection, which was not included within defendant's formal motion to suppress nor expressly raised at the hearing (see, People v. Washington, 111 A.D.2d 418, 489 N.Y.S.2d 380, lv. denied 66 N.Y.2d 768, 497 N.Y.S.2d 1043, 488 N.E.2d 129; People v. Donovon, 107 A.D.2d 433, 441, 487 N.Y.S.2d 345).

The only other significant point raised by defendant concerns the denial of his motion to dismiss the fourth count of the indictment (criminal possession of a controlled substance in the fourth degree [Penal Law § 220.09(1) ], the charge to which he ultimately pleaded guilty. That count alleged that, on the date of his arrest, defendant possessed "one or more * * * substances of an aggregate weight of one eighth ounce or more containing a narcotic drug, to wit, cocaine and heroin " (emphasis supplied). In moving to dismiss...