People v. Washington

• Decision Date: 21 November 1996
• Parties: The PEOPLE of the State of New York, Respondent, v. John WASHINGTON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 334

650 N.Y.S.2d 334

233 A.D.2d 684

The PEOPLE of the State of New York, Respondent, v. John WASHINGTON, Appellant.

Supreme Court, Appellate Division Third Department.

Nov. 21, 1996.

Hollie E. Bethmann, Troy, for appellant.

Sol Greenberg, District Attorney (Christopher D. Horn, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and CASEY, YESAWICH, SPAIN and CARPINELLO, JJ.

SPAIN, Justice.

Appeal from a judgment of the County Court of Albany County (Teresi, J.), rendered February 17, 1995, upon a verdict convicting defendant of two counts of the crime of criminal possession of a controlled substance in the third degree.

On December 4, 1990, at approximately 2:30 A.M., a vehicle driven by Jamel Davis was stopped by State Trooper Ferando Ortega on the Thruway in the Town of Coeymans, Albany County, for having no front license plate and for having no illumination on the rear license plate, each in violation of the Vehicle and Traffic Law. Defendant was a front seat passenger in the vehicle; two other passengers were situated in the back seat. None of the individuals in the vehicle produced a valid driver's license and, after ascertaining that there were no licensed drivers available to operate the vehicle, Ortega proceeded to impound and inventory the vehicle in accordance with the procedures set forth in the State Police Field Manual. While Ortega was inventorying the contents of the vehicle, he noticed a brown paper bag stuffed behind the air vents in the front dashboard; the air vents were secured by two screws which looked to Ortega as if they had been previously removed. Ortega removed the screws and the vent and retrieved the brown paper bag which contained over 200 small plastic vials containing a white chunky substance. Subsequent laboratory analysis revealed that the substance was cocaine and that the total weight was more than one half of an ounce.

All four occupants of the vehicle were arrested. Defendant was charged with two counts of criminal possession of a controlled substance in the third degree. Defendant later discharged his attorney and filed a successful pro se writ of habeas corpus; the writ was granted and he was released from custody on February 8, 1991. On February 27, 1991 defendant was indicted as originally charged. Defendant failed to appear for arraignment on March 12, 1991 and on April 2, 1991 a bench warrant was issued for his arrest. On March 15, 1993 defendant, while incarcerated in the Albany County Jail pursuant to a bench warrant on an unrelated charge, was arrested on the bench warrant issued in this case and on April 5, 1993 he was arraigned on the 1991 indictment. The People declared their readiness to proceed to trial at that time. Following a jury trial, defendant was convicted of two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1], [12] ). Thereafter, County Court denied defendant's motion pursuant to CPL article 330 to set aside or modify the verdict. Defendant was sentenced to concurrent indeterminate terms of imprisonment of 8 1/3 to 25 years on each count. Defendant appeals.

We affirm. Initially, we reject defendant's contention that he was denied his statutory and constitutional right to a speedy trial. The record supports County Court's conclusion that defendant's whereabouts between March 4, 1991 and March 15, 1993 were unknown and that law enforcement officials took diligent steps in attempting to locate him. A State Trooper testified that after the bench warrant was issued he instituted a "File 5" wanted person entry on defendant which was sent via the State Police computer network to alert police agencies nationwide that defendant was wanted. He and other officers periodically ran criminal history checks on defendant to ascertain whether he had been arrested by another agency. Defendant's driver's license records were reviewed and once it was learned that defendant had been arrested previously, investigators checked his last known address and interviewed neighbors. The record also shows that during this time defendant was arrested several times within the State using various aliases and dates of birth from which it can justifiably be inferred that he was avoiding prosecution. There was ample evidence that the two-year delay was caused by defendant's own absence and attempt to avoid apprehension or prosecution and that his location could not be determined by due diligence (CPL 30.30[4][c] ), thereby making that time period chargeable to defendant. ¹ We therefore conclude that the People's declaration of readiness for trial on April 5, 1993 was timely. We need not address defendant's assertion that his constitutional right to a speedy trial was violated (see, CPL 30.20) because the issue was not raised in his pretrial or presentencing motions (see, People v. Lieberman, 47 N.Y.2d 931, 932-933, 419 N.Y.S.2d 946, 393 N.E.2d 1019; People v. James, 188 A.D.2d 296, 590 N.Y.S.2d 722; People v. Moore, 159 A.D.2d 521, 522, 552 N.Y.S.2d 389) and is therefore unpreserved for review. In any event, were we to apply the factors set forth in People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79, 335 N.E.2d 303, we would conclude that the delay in the instant matter was not excessive or violative of defendant's constitutional right to a speedy trial.

Next, we reject defendant's contention that County Court erred by denying his motion to suppress the cocaine seized during the inventory search of the vehicle. "It is well settled that the police may search an impounded vehicle to inventory its contents * * * " (People v. Rhodes, 206 A.D.2d 710 711, 614 N.Y.S.2d 641, lv denied 84 N.Y.2d 1014, 622 N.Y.S.2d 926, 647 N.E.2d 132 [citation omitted] ). To be valid, however, the inventory must be both reasonable and conducted pursuant to a standardized or established police agency procedure (see, People v. Galak, 80 N.Y.2d 715, 716, 594 N.Y.S.2d 689, 610 N.E.2d 362; People v. Salazar, 225 A.D.2d 804, 640 N.Y.S.2d 167, 168, lv denied 88 N.Y.2d 969, 647 N.Y.S.2d 723, 670 N.E.2d 1355; People v. Rhodes, supra, at 711, 614 N.Y.S.2d 641; People v. Thompson, 202 A.D.2d 796, 609 N.Y.S.2d 873, lv denied 84 N.Y.2d 833, 617 N.Y.S.2d 154, 641 N.E.2d 175). Moreover, "[t]o satisfy the constitutional mandate of reasonableness, an inventory search of an impounded vehicle must be conducted pursuant to a standard procedure which is designed to meet the legitimate objectives of the search, and which clearly limits the discretion exercisable by officers in the field" (People v. Walker, 194 A.D.2d 92, 94, 604 N.Y.S.2d 631, lv denied 83 N.Y.2d 811, 611 N.Y.S.2d 147, 633 N.E.2d 502; see, People v. Galak, supra, at 719, 594 N.Y.S.2d 689, 610 N.E.2d 362).

In this case Ortega testified that because there was no licensed driver to operate the vehicle after it had been stopped, State Police procedure required that the vehicle be impounded and inventoried, and that while performing his inventory the paper bag was found behind the air vents. New York State Police Field Manual article 33 requires that the contents of "ALL vehicle compartments AND all closed containers which can be opened WITHOUT causing physical damage to the compartment OR container" be inventoried. This procedure has been held to comport with the requirement of a standard procedure and satisfies the constitutional standard of reasonableness (see, People v. Thompson, supra; People v. Walker, supra). The record is devoid of any proof that the removal of the screws holding the air vents in place caused any physical damage, thereby obviating the need for Ortega to seek the approval of a higher ranking State Police officer.

We next conclude that defendant's arguments relating to numerous alleged errors which denied him a fair trial and due process of law are unpreserved for our review since they were not raised at trial (see, People v. Dunn, 204 A.D.2d 919, 612 N.Y.S.2d 266, lv denied 84 N.Y.2d 907, 621 N.Y.S.2d 524, 645 N.E.2d 1224; see also, CPL 470.05[2] ). We therefore need not address defendant's contentions regarding evidence allegedly improperly admitted, without objection, or the alleged leading questions and the hearsay statement allowed, without objection, by County Court. We feel compelled, however, to address defendant's contention, although unpreserved, that the prosecution unethically used Assistant District Attorneys as both witnesses and advocates, thereby violating the Code of Professional Responsibility DR 5-101(B) (22 NYCRR 1200.20[b] ). The record reveals that Assistant District Attorney Brian Farley was called as a witness at the speedy trial hearing and was examined by the prosecutor, Assistant District Attorney Paul Clyne. Significantly, neither Farley nor Clyne served as both a witness and an advocate in this case (see, People v. Freeman, 172 A.D.2d 1045, 1046, 569 N.Y.S.2d 857, lv denied 78 N.Y.2d 1011, 575 N.Y.S.2d 819, 581 N.E.2d 1065). "The fact that the witness's colleague prosecuted the case is not sufficient to show either actual prejudice or a substantial risk of abuse of confidence" (id., at 1046, 569 N.Y.S.2d 857). Defendant's assertion in this regard is totally without merit.

Further, we find no merit in defendant's contention that County Court (Turner Jr., J.) abused its discretion in denying his motion to order responses to discovery demands, to preclude evidence at trial or to dismiss the indictment. County Court had previously issued an omnibus discovery order on April 5, 1993. County Court's subsequent denial of discovery was properly based upon the fact that defendant's motion was duplicative of the omnibus discovery order previously issued by the court (see, People v. Boomer, 220 A.D.2d 833, 632 N.Y.S.2d 309). Notably, the record is devoid of any indication that the delay in response to ...