PEOPLE v. HAYNES (1999)

Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Respondent, v. Emerson HAYNES, Appellant.

Decided: February 10, 1999

PRESENT: DENMAN, P.J., HAYES, PIGOTT, Jr., and CALLAHAN, JJ.

Linda S. Reynolds, Buffalo, for Appellant. Frank J. Clark, Buffalo, for Respondent.

We previously held this case, reserved decision and remitted the matter to Supreme Court to conduct a suppression hearing to determine whether the police exceeded the scope of a search warrant by searching the third-floor attic at the premises (People v. Haynes, 256 A.D.2d 1193, 683 N.Y.S.2d 460). The People now concede that the actions of the police officers in executing the warrant exceeded the authority of the warrant and that defendant is entitled to the relief requested by him.

The record establishes that 330.37 grams of marihuana were seized from the third-floor attic, and thus that quantity must be suppressed. The remaining contraband lawfully seized from defendant's residence and person totals 338.75 grams, or approximately 11.9 ounces, of marihuana. We therefore modify the judgment by reducing the conviction of criminal possession of marihuana in the second degree to criminal possession of marihuana in the third degree (Penal Law § 221.20) and vacating the sentence imposed thereon, and we remit the matter to Supreme Court for sentencing.

Judgment unanimously modified on the law and as modified affirmed and matter remitted to Supreme Court for sentencing.

MEMORANDUM:

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