TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A.
HOBBS OF COUNSEL), FOR DEFENDANT-APPELLANT.
KENDRICK, DEFENDANT-APPELLANT PRO SE.
DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND
from a judgment of the Supreme Court, Monroe County (Kenneth
R. Fisher, J.), rendered February 1, 2001. The appeal was
held by this Court by order entered May 8, 2015, decision was
reserved and the matter was remitted to Supreme Court, Monroe
County, for further proceedings (128 A.D.3d 1482). The
proceedings were held and completed.
hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the plea is vacated, that
part of the motion seeking to suppress physical evidence from
the vehicle is granted, and the matter is remitted to Supreme
Court, Monroe County, for further proceedings on the
Defendant appeals from a judgment convicting him, upon his
plea of guilty, of criminal possession of a controlled
substance in the second degree (Penal Law § 220.18 ).
When this appeal was previously before us, we concluded that,
as the People correctly conceded, Supreme Court (Fisher, J.)
erred in determining that defendant lacked standing to
challenge the legality of the police search of a vehicle in
which a large quantity of cocaine was found in the back seat
(People v Kendrick, 128 A.D.3d 1482, 1482-1483). We
further concluded that the error was not harmless because
there was a reasonable possibility that the error contributed
to defendant's decision to plead guilty. Upon remittal,
the court (Winslow, J.) conducted a suppression hearing,
following which it refused to suppress the cocaine, ruling
that the People proved that the driver of the vehicle
voluntarily consented to the search of the vehicle, and that
the warrantless search was therefore lawful. We now reverse.
is the People's burden to establish the voluntariness of
defendant's consent, and that burden is not easily
carried, for a consent to search is not voluntary unless it
is a true act of the will, an unequivocal product of an
essentially free and unconstrained choice. Voluntariness is
incompatible with official coercion, actual or implicit,
overt or subtle' " (People v Packer, 49
A.D.3d 184, 187, affd 10 N.Y.3d 915, quoting
People v Gonzalez, 39 N.Y.2d 122, 128). "An
important, although not dispositive, factor in determining
the voluntariness of an apparent consent is whether the
consenter is in custody or under arrest, and the
circumstances surrounding the custody or arrest"
(Gonzalez, 39 N.Y.2d at 128).
defendant was a front seat passenger in the vehicle in which
the cocaine was found by the police. The only other occupant
was the driver, who owned the vehicle and consented to the
police search. At the suppression hearing, the sole witness
called by the People was the police officer who obtained
consent to search from the driver. That officer acknowledged,
however, that she was not involved in the stop of the vehicle
and did not know the basis for the stop. She was unaware
whether the driver committed any traffic infractions and did
not know why the driver was taken into custody. According to
the officer, she came into contact with the driver in an
interview room at the police station at approximately 8:00
p.m., which was more than 4½ hours after the vehicle
was stopped. The officer did not know who, if anyone, had
questioned the driver before she entered the interview room;
did not know whether anyone had advised him of his
Miranda rights; did not know whether he had been
handcuffed prior to her arrival; did not know whether he had
been given any food or drink; and did not know whether he had
been allowed to make any telephone calls. The officer merely
testified that the driver spontaneously told her during the
interview that there was cocaine in the back seat of his
vehicle, and that he then voluntarily consented to the search
by signing a consent to search form.
conclude that, "[b]ecause the People failed to present
evidence at the suppression hearing establishing the legality
of the police conduct, [the driver's] purported consent
to the search of his vehicle was involuntary[, ] and all
evidence seized from the vehicle as a result of that consent
should have been suppressed" (People v Purdy,
106 A.D.3d 1521, 1523; see Packer, 49 A.D.3d at
187-189). We therefore reverse the judgment, vacate the plea,
grant defendant's omnibus motion insofar as it sought
suppression of the cocaine found in the vehicle, and remit
the matter to Supreme Court for further proceedings on the
light of our determination, we do not address the contention
raised by ...