People v. Burger

Decision Date19 August 1985
Citation493 N.Y.S.2d 34,112 A.D.2d 1046
PartiesThe PEOPLE, etc., Respondent, v. Joseph BURGER, Appellant.
CourtNew York Supreme Court — Appellate Division

Mahler & Harris, P.C., Kew Gardens (Stephen R. Mahler, Kew Gardens, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Peter A. Weinstein

and Leonard Joblove, Brooklyn, of counsel), for respondent.

Before MANGANO, J.P., and THOMPSON, BROWN and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered August 15, 1984, convicting him of criminal possession of stolen property in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial (Douglass, J.), of defendant's renewed motion to suppress certain evidence, 125 Misc.2d 709, 479 N.Y.S.2d 936.

Judgment affirmed. This case is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50(5).

Citing this court's opinion in People v. Pace, 101 A.D.2d 336, 475 N.Y.S.2d 443, affd. 65 N.Y.2d 684, 491 N.Y.S.2d 618, 481 N.E.2d 250), defendant claims that the warrantless inspection of his automobile junkyard by the police violated his constitutional rights. The instant case is, however, clearly distinguishable from People v. Pace (supra). In Pace, the police used the pretext of an administrative inspection to conduct an unconstitutional warrantless search for evidence of a crime. In the instant case, the police were seeking to administer the regulatory schemes set forth in Vehicle and Traffic Law § 415-a and New York City Charter § 436. The constitutionality of these statutory provisions has recently been upheld by this court (People v. Cusumano, 108 A.D.2d 752, 484 N.Y.S.2d 909).

Upon review of the record, we find no merit to defendant's claim that, as in Pace, the police were using the administrative inspection as a pretext to gather evidence of a crime. Thus, the conduct of the police was proper and the judgment should be affirmed.

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6 cases
  • New York v. Burger
    • United States
    • U.S. Supreme Court
    • June 19, 1987
    ...in the instant case that § 415-a5 was constitutional.8 For the same reasons, the Appellate Division affirmed. 112 App.Div.2d 1046, 493 N.Y.S.2d 34 (1985). The New York Court of Appeals, however, reversed. 67 N.Y.2d 338, 502 N.Y.S.2d 702, 493 N.E.2d 926 (1986). In its view, § 415-a5 violated......
  • People v. Keta
    • United States
    • New York Supreme Court — Appellate Division
    • February 19, 1991
    ...to recognize when examining the statute under the identically-worded provision of the Federal Constitution ( see, People v. Burger, 112 A.D.2d 1046, 493 N.Y.S.2d 34, revd. 67 N.Y.2d 338, 502 N.Y.S.2d 702, 493 N.E.2d 926, revd sub nom New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed......
  • People v. Burger
    • United States
    • New York Court of Appeals Court of Appeals
    • May 8, 1986
    ...of these statutory provisions has recently been upheld by this court in People v. Cusumano, 108 A.D.2d 752, 484 N.Y.S.2d 909." (112 A.D.2d 1046, 493 N.Y.S.2d 34.) On this appeal, defendant argues that Vehicle and Traffic Law § 415-a and New York City Charter § 436 are facially unconstitutio......
  • People v. Keta
    • United States
    • New York Supreme Court
    • February 21, 1989
    ...the subject matter of many decisions by the courts of this State. They cite some of the more recent cases, such as People v. Burger, 112 A.D.2d 1046, 493 N.Y.S.2d 34 [1985], revd. 67 N.Y.2d 338, 502 N.Y.S.2d 702, 493 N.E.2d 926, revd. 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601, dismd. 70 ......
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3 books & journal articles

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