People v. Miret-Gonzalez

• Decision Date: 19 March 1990
• Docket Number: MIRET-GONZALE,A
• Citation: 159 A.D.2d 647,552 N.Y.S.2d 958
• Parties: The PEOPLE, etc., Respondent, v. Roger J.ppellant.
• Court: New York Supreme Court — Appellate Division

Page 958

552 N.Y.S.2d 958

159 A.D.2d 647

The PEOPLE, etc., Respondent, v. Roger J. MIRET-GONZALEZ, Appellant.

Supreme Court, Appellate Division Second Department.

March 19, 1990.

Anthony V. Lombardino, Kew Gardens, for appellant.

Kenneth Gribetz, Dist. Atty., New City (Sondra S. Holt, of counsel, Carrie Ciganek, on the brief), for respondent.

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

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Rockland County (Kelly, J.), rendered January 4, 1989, convicting him of criminal possession of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is reversed, on the law and the facts, that branch of the defendant's omnibus motion which was to suppress physical evidence is granted, the indictment is dismissed and the matter is remitted to the County Court, Rockland County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

The hearing record discloses that, at approximately 4:45 P.M. on August 30, 1987, while on motor patrol on Route 303 in Orangetown, Officer Robert Goldrick observed a speeding white Pontiac automobile with Florida license plates. According to Officer Goldrick's testimony, after following the vehicle for about one-half to three-quarters of a mile he noticed that the car also had a defective brake light. He thereupon pulled the car over, approached the passenger side of the vehicle and requested from the defendant, who was driving the car, his driver's license and the vehicle's registration form. While the defendant and his passenger were searching in the glove compartment for the registration, according to Officer Goldrick, a children's toy box fell from the compartment and was placed by the passenger on the seat next to him. Protruding from the box was a plastic ziplock bag. Officer Goldrick claimed that he made a mental note of the bag because he thought it unusual that such a bag would be in a toy box with the concomitant risk of a child smothering from it. Otherwise, he testified, his suspicion was not aroused by the box and bag.

Officer Goldrick testified further that he received the license and registration form from the defendant and also requested and received the name and date of birth of the passenger, ostensibly because the passenger was not wearing a seat belt when he approached the car. All this information, according to the officer, was checked in New York and Florida by computer through use of his two-way radio. The procedure, according to Officer Goldrick, took three minutes and produced negative results, that is, there were no outstanding warrants, suspensions or revocations on the defendant, his passenger or the vehicle. Officer Goldrick stated that he did not write out summonses for these traffic infractions during the time he was in the patrol car because he did not like to remain in his car for long periods of time and because there were other things which he wanted to investigate, such as the tire tread, the paint on the car, the vehicle identification number (hereinafter VIN) and the tinted windows. Officer Goldrick testified further that while the radio check was proceeding he called for other police officers, although he admitted that both occupants were cooperative, he did not feel threatened, his weapon was not drawn, and he had no suspicion that the car was stolen. As a result of Officer Goldrick's call, Officer Neeck responded to the scene.

Officer Goldrick testified further that he then returned to the defendant's vehicle and, after observing the VIN on the dashboard he noticed that the first number (1) and the first letter (G) on the registration form were missing, although the full number appeared in the VIN on the dashboard. He testified that he knew that the number "1" meant the car had been manufactured in the United States and the letter "G" meant that the car was manufactured by General Motors Corporation, but that, nevertheless, he told the defendant that the VIN on the registration was "completely off", whereupon the defendant and the passenger exited the car. Officer Goldrick added that the defendant told him that on previous occasions when he was stopped, the police officers had examined the VIN on the car door. According to Officer Goldrick's further testimony, after telling Officer Neeck to "keep an eye on these two fellows", he opened the car door wider than the defendant had left it, and admittedly wider than was necessary to see the VIN, and then got down on bended knee and looked at the VIN. Turning his head to the right, he claimed that he could see inside the toy box which, he noticed, contained a white chunky substance. He then placed the defendant and his passenger under arrest.

Officer Goldrick was impeached in cross-examination with an incident report, written by him on the same day as the arrest, in which he had indicated that he had taken up the box and looked inside it before seeing the white substance. When confronted with this apparent inconsistency, Officer Goldrick's response was that he had neglected to include in the report that he had seen the drug prior to opening the box, although he claimed that the report was accurate.

The defendant's motion to suppress the physical evidence was denied and, upon his plea of guilty, the defendant was convicted and sentenced. For the reasons that follow, we conclude that branch of the defendant's omnibus motion which was to suppress physical evidence should have been granted, and the indictment against him dismissed.

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