People v. Boomer

• Citation: 590 N.Y.S.2d 898,187 A.D.2d 659
• Parties: The PEOPLE, etc., Respondent, v. Gregory BOOMER, Appellant.
• Decision Date: 23 November 1992
• Court: New York Supreme Court Appellate Division

Page 898

590 N.Y.S.2d 898

187 A.D.2d 659

The PEOPLE, etc., Respondent, v. Gregory BOOMER, Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 23, 1992.

Florence M. Kerner, Huntington, for appellant.

Richard A. Brown, Dist. Atty., Kew Gardens (Daniel J. O'Reilly, Robin A. Forshaw and Yonette Sam, of counsel), for respondent.

Before LAWRENCE, J.P., and COPERTINO, PIZZUTO and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Naro, J.), rendered June 12, 1989, convicting him of criminal possession of a controlled substance in the fourth degree under Indictment Number 6653/87, upon his plea of guilty, and imposing sentence as second felony offender, and (2) two amended judgments of the same court, both rendered June 12, 1989, revoking sentences of probation previously imposed by the same court, upon findings that he had violated conditions thereof, upon his admissions, and imposing sentences of imprisonment upon his previous convictions of criminal sale of marihuana in the fourth degree under Indictment No. 2447/84, and criminal possession of marihuana in the fifth degree under Indictment No. 2263/84. The appeal from the judgment brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence under Indictment No. 6653/87.

ORDERED that the judgment and amended judgments are affirmed.

The attention of the police was drawn to the 1980 Buick in which the defendant had been riding, based upon its cracked windshield, which prompted them to run the computer check. When the computer report noted that the vehicle had been stolen from Suffolk County the previous day, the police stopped the vehicle. When asked to do so by the police, the driver of the car was unable to produce either a driver's license or a car registration, whereupon the officers arrested the driver and the defendant. A search of the defendant resulted in the discovery of 43 vials of crack cocaine in his jacket pocket. Suppression of the vials of crack cocaine was denied.

The defendant thereafter pleaded guilty to criminal possession of a controlled substance in the fourth degree and to the violation of the conditions of two sentences of probation. At the commencement of a hearing to determine whether the defendant was a second-felony offender, he alleged that his plea of guilty to the prior felony was entered involuntarily. The court adjourned the hearing to give the defendant an opportunity to gather evidence to support his allegation. Two months later, the defendant came before the court but did not produce any evidence to support his contention that his prior plea was entered involuntarily. The defendant argued that he should not be sentenced until the court reviewed the minutes of his plea of guilty to the prior felony. The minutes were unavailable and the court proceeded to sentence the defendant as a second felony offender.

On appeal, the defendant contends that the police did not have probable cause to arrest him and therefore the vials of crack cocaine should be suppressed. However, the computer report that the Buick...