People v. Andino

• Decision Date: 15 December 1998
• Citation: 681 N.Y.S.2d 518
• Parties: 1998 N.Y. Slip Op. 11,107 The PEOPLE of the State of New York, Respondent, v. Migna ANDINO, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 518

681 N.Y.S.2d 518

1998 N.Y. Slip Op. 11,107

The PEOPLE of the State of New York, Respondent, v. Migna ANDINO, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Dec. 15, 1998.

Kevin Scott Koplin, for Respondent.

Jay L. Weiner, for Defendant-Appellant.

Before ELLERIN, J.P., and NARDELLI, RUBIN and SAXE, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (David Stadtmauer, J., at suppression hearing; Efrain Alvarado, J., at jury trial and sentence), rendered October 21, 1996, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing her, as a second felony offender, to a term of 6 to 12 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to a term of 5 to 10 years, and otherwise affirmed.

The hearing court properly denied defendant's motion to suppress physical evidence. Contrary to defendant's argument, the arrest of defendant, based upon probable cause, in the doorway of her apartment, did not implicate Fourth Amendment protections against warrantless arrests inside a suspect's home (United States v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406, 49 L.Ed.2d 300; People v. Rosario, 179 A.D.2d 442, 579 N.Y.S.2d 12, lv. denied 79 N.Y.2d 1053, 584 N.Y.S.2d 1021, 596 N.E.2d 419). Further, the police properly conducted a limited and swift security check of the apartment, immediately following defendant's lawful arrest, to determine if there were any individuals present who might destroy evidence or pose a threat to the officers (Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276; United States v. Agapito, 620 F.2d 324, 335, cert. denied 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40). Since the officers were aware that prerecorded buy money was utilized in the reported drug transaction that was completed only minutes before, and since nothing was recovered from defendant's person, the officers justifiably seized a quantity of currency observed in plain view on a counter approximately five feet from where defendant was arrested (see, People v. Smith, 179 A.D.2d 597, 598, 579 N.Y.S.2d 355, lv. denied 79 N.Y.2d 1008, 584 N.Y.S.2d 462, 594 N.E.2d 956), the incriminating nature of that currency being readily apparent (see, Horton v. California, 496 U.S. 128, 136-137, 110 S.Ct. 2301, 110 L.Ed.2d 112).

The trial court appropriately exercised its discretion in discharging an absent sitting juror and...