People v. Burger

• Decision Date: 19 August 1985
• Citation: People v. Burger, 493 N.Y.S.2d 34, 112 A.D.2d 1046 (N.Y. App. Div. 1985)
• Parties: The PEOPLE, etc., Respondent, v. Joseph BURGER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 34

493 N.Y.S.2d 34

112 A.D.2d 1046

The PEOPLE, etc., Respondent, v. Joseph BURGER, Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 19, 1985.

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...