People v. Geddes-Kelly

• Decision Date: 11 July 2018
• Docket Number: Ind. No. 950/14,2015–10085
• Citation: 81 N.Y.S.3d 414,163 A.D.3d 716
• Parties: The PEOPLE, etc., respondent, v. Jaleel GEDDES–KELLY, appellant.
• Court: New York Supreme Court — Appellate Division

163 A.D.3d 716

81 N.Y.S.3d 414

The PEOPLE, etc., respondent,

v.Jaleel GEDDES–KELLY, appellant.

2015–10085

Ind. No. 950/14

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 15, 2018

July 11, 2018

Paul Skip Laisure, New York, N.Y. (Hannah Zhao of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Danielle S. Fenn of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (John B. Latella, J.), rendered September 29, 2015, convicting him of criminal possession of a forged instrument in the second degree and criminal possession of marihuana in the fifth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review, as limited by the defendant's brief, the denial, after a hearing (Steven Paynter, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence of the credit cards that were recovered from inside the defendant's wallet.

ORDERED that the judgment is modified, on the law, by vacating the conviction of criminal possession of a forged instrument in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed, and that branch of the defendant's omnibus motion which was to suppress physical evidence is granted to the extent of suppressing the credit cards that were recovered from inside the defendant's wallet.

On September 24, 2013, at approximately 10:15 p.m. police officers pulled over a vehicle driven by the defendant for various traffic infractions. During the vehicle stop, one of the police officers, while looking into the open passenger side window, observed on the floor of the vehicle near the defendant's feet a clear plastic bag containing what appeared to be marihuana. The defendant was asked to step out of the vehicle. After frisking him for weapons and contraband, the police officer placed the defendant in handcuffs. He then took the defendant's wallet out of his pocket to search for pedigree information. When the police officer opened the defendant's wallet, he found three credit cards inside the wallet, which he concluded were forged.

The defendant was subsequently charged with, inter alia, three counts of criminal possession of a forged instrument in the second degree (one for each credit card) and criminal possession of marihuana in the fifth degree. Following a suppression hearing, the hearing court denied that branch of the defendant's omnibus motion which was to suppress the physical evidence, reasoning in part that the credit cards had been recovered as the result of a proper search incident to a lawful arrest.

During the ensuing jury trial, at the close of the People's case, the Supreme Court granted the defendant's motion to dismiss two of the three counts charging the defendant with criminal possession of a forged instrument in the second degree on the ground that the People failed to present sufficient evidence to establish that two of the three credit cards found in the defendant's wallet were forged. The defendant subsequently was convicted of one count of criminal possession of a forged instrument in the second degree and criminal possession of marihuana in the fifth degree.

We agree with the defendant that the Supreme Court erred in denying that branch of his omnibus motion which was to suppress the credit cards that were recovered from inside his wallet. While the police officer's search of the defendant's pockets was justified since it arose from a search incident to a lawful arrest (see People v. Inge, 90 A.D.3d 675, 676, 933 N.Y.S.2d 879 ; People v. Parker, 306 A.D.2d 543, 761 N.Y.S.2d 850 ; People v. Cooper, 241 A.D.2d 553, 554, 661 N.Y.S.2d 243 ), the subsequent search of the defendant's wallet was akin to searching a small bag or change purse and was unlawful. "The protections embodied in article I, § 12 of the New York State Constitution serve to shield citizens from warrantless intrusions on their privacy interests, including their personal effects" ( People v. Jimenez, 22 N.Y.3d 717, 719, 985 N.Y.S.2d 456, 8 N.E.3d 831 ; see People v. Gokey, 60 N.Y.2d 309, 312, 469 N.Y.S.2d 618, 457 N.E.2d 723 ). "[E]ven a bag within the immediate control or ‘grabbable area’ of a suspect at the time of his [or her] arrest may not be subjected to a warrantless search incident to the arrest, unless the circumstances leading to the arrest support a reasonable belief that the suspect may gain possession of a weapon or be able to destroy evidence located in the bag" ( People v. Anderson, 142 A.D.3d 713, 715–716, 37 N.Y.S.3d 151 [internal quotation marks and citations omitted] ). The proof adduced at the suppression hearing failed to establish the presence of such circumstances (see People v. Evans, 84 A.D.3d 573, 574–575, 922 N.Y.S.2d...