People v. Soto

297 A.D.2d 581, 747 N.Y.2d 173, 747 N.Y.S.2d 173, 2002 N.Y. App. Div. LEXIS 8769

Opinion

Defendant’s suppression motion was properly denied. Drugs were recovered from defendant incident to a lawful arrest. Defendant committed a violation in the presence of police officers, who properly elected to make an arrest rather than issuing a summons because defendant carried no identification and stated that he was homeless. Defendant argues that the Equal Protection Clause requires the police, in making such a decision, to treat a defendant’s residence in a homeless shelter the same as any other verifiable address. We need not decide that issue because there is no evidence that defendant ever informed the police that he lived in a shelter. The document that defendant showed to the police apparently related to free food and did not establish that he was a shelter resident at the time of his arrest.

As conceded by the People, defendant’s conviction for criminal possession of a controlled substance in the seventh degree, a lesser included offense of fourth-degree possession, should be vacated. Concur — Nardelli, J.P., Saxe, Buckley, Ellerin and Marlow, JJ.