People v. Kelly

Appellate Division of the Supreme Court of New York

People v. Kelly

82 A.D.3d 508, 919 N.Y.2d 8

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 10, 2011

StatusPublished

Cited by2 cases

This text of 82 A.D.3d 508 (People v. Kelly) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Kelly, 82 A.D.3d 508, 919 N.Y.2d 8 (N.Y. Ct. App. 2011).

Pincite

Opinion

The court properly denied defendant’s suppression motion. The police properly seized evidence under the plain view doctrine (see People v Diaz, 81 NY2d 106, 110 [1993]; Horton v California, 496 US 128, 136-137 [1990]; Arizona v Hicks, 480 US 321, 324-329 [1987]). The police arrested defendant and the co-defendant in a car minutes after they sold drugs to an undercover officer. An officer saw a clear lip balm container on the floor of the car, and noticed that it held what appeared to be yellow ziplock bags of crack cocaine. The incriminating nature of this evidence was immediately apparent to the trained and experienced officer (see e.g. People v Batista, 261 AD2d 218 [1999], lv denied 94 NY2d 819 [1999]). The officer immediately recognized that the container was of a type commonly used to hold narcotics, and saw “yellow zips” inside the clear container, which he recognized as packaging for cocaine. The record fails to support defendant’s assertion that the officer did not detect the presence of contraband until after he seized the evidence.

The lip balm container of drugs was also admissible under the automobile exception to the warrant requirement (see People v Blasich, 73 NY2d 673 [1989]; People v Ellis, 62 NY2d 393, 398 [1984]). Defendant and the codefendant got into a car immediately after completing an undercover sale, and the arresting officer immediately recognized the lip balm container as a common device for carrying drugs. Accordingly, it was reasonable to infer that the car would contain drugs.

Defendant alsti argues that the lip balm container and its contents should have been excluded at trial as inadmissible as [509]*509evidence of an uncharged crime. Since defendant objected to this evidence on different grounds from those raised on appeal, his present claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. This evidence linked defendant to the crime because the container matched a container used in making the undercover sale, and it was not unduly prejudicial.

We perceive no basis for reducing the sentence. Concur— Saxe, J.E, Friedman, Acosta, DeGrasse and Richter, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

The court properly denied defendant’s suppression motion. The police properly seized evidence under the plain view doctrine (see People v Diaz, 81 NY2d 106, 110 [1993]; Horton v California, 496 US 128, 136-137 [1990]; Arizona v Hicks, 480 US 321, 324-329 [1987]). The police arrested defendant and the co-defendant in a car minutes after they sold drugs to an undercover officer. An officer saw a clear lip balm container on the floor of the car, and noticed that it held what appeared to be yellow ziplock bags of crack cocaine. The incriminating nature of this evidence was immediately apparent to the trained and experienced officer (see e.g. People v Batista, 261 AD2d 218 [1999], lv denied 94 NY2d 819 [1999]). The officer immediately recognized that the container was of a type commonly used to hold narcotics, and saw “yellow zips” inside the clear container, which he recognized as packaging for cocaine. The record fails to support defendant’s assertion that the officer did not detect the presence of contraband until after he seized the evidence.

The lip balm container of drugs was also admissible under the automobile exception to the warrant requirement (see People v Blasich, 73 NY2d 673 [1989]; People v Ellis, 62 NY2d 393, 398 [1984]). Defendant and the codefendant got into a car immediately after completing an undercover sale, and the arresting officer immediately recognized the lip balm container as a common device for carrying drugs. Accordingly, it was reasonable to infer that the car would contain drugs.

Defendant alsti argues that the lip balm container and its contents should have been excluded at trial as inadmissible as [509]*509evidence of an uncharged crime. Since defendant objected to this evidence on different grounds from those raised on appeal, his present claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. This evidence linked defendant to the crime because the container matched a container used in making the undercover sale, and it was not unduly prejudicial.

We perceive no basis for reducing the sentence. Concur— Saxe, J.E, Friedman, Acosta, DeGrasse and Richter, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

82 A.D.3d 508, 919 N.Y.2d 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kelly-nyappdiv-2011.

Opinion

Related

Cite This Page — Counsel Stack