PEOPLE v. JOHNSON III (2000)

 On appeal from a judgment convicting him of criminal possession of a weapon in the third degree (Penal Law § 265.02[4] ) and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), defendant contends that Supreme Court erred in denying his motion to suppress drugs, a gun, and various incriminating oral statements of defendant on Fourth Amendment and/or Miranda grounds.   The court erred in denying suppression of the drugs.   In the absence of particularized suspicion or any grounds on the part of the officer to fear for his safety or that of his fellow officers, the officer lacked any justification for searching the pocket of defendant's pants (see, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889;  People v. Diaz, 81 N.Y.2d 106, 109, 595 N.Y.S.2d 940, 612 N.E.2d 298;  People v. Bryant, 245 A.D.2d 1010, 1012-1013, 667 N.Y.S.2d 442;  People v.. Brown, 204 A.D.2d 994, 613 N.Y.S.2d 70).   Further, the court erred in refusing to suppress, on Fourth Amendment grounds, the oral admission of defendant concerning his ownership of the pants.   That statement was the unattenuated by-product of the illegal search of defendant's pants and the seizure of the drugs (see, Brown v. Illinois, 422 U.S. 590, 604-605, 95 S.Ct. 2254, 45 L.Ed.2d 416;  Wong Sun v. United States, 371 U.S. 471, 484-488, 83 S.Ct. 407, 9 L.Ed.2d 441). Further, the statement must be suppressed because it was the product of custodial interrogation, not preceded by Miranda warnings, and not justified under the public safety exception to the Miranda rule (see generally, New York v. Quarles, 467 U.S. 649, 655-657, 104 S.Ct. 2626, 81 L.Ed.2d 550;  People v. Chestnut, 51 N.Y.2d 14, 23, n. 8, 431 N.Y.S.2d 485, 409 N.E.2d 958, cert. denied 449 U.S. 1018, 101 S.Ct. 582, 66 L.Ed.2d 479;  People v. Huffman, 41 N.Y.2d 29, 34-35, 390 N.Y.S.2d 843, 359 N.E.2d 353).

 The court properly denied, however, defendant's motion to suppress the gun, which was seized by police in plain view (see, People v. Funches, 89 N.Y.2d 1005, 1007, 657 N.Y.S.2d 396, 679 N.E.2d 635, rearg. denied 90 N.Y.2d 889, 661 N.Y.S.2d 833, 684 N.E.2d 283) during a search of the apartment to which the tenant consented (see, People v. Kemp, 273 A.D.2d 806, 708 N.Y.S.2d 542;  People v. Cruz, 272 A.D.2d 922, 709 N.Y.S.2d 717, lv. granted 95 N.Y.2d 859, 714 N.Y.S.2d 11, 736 N.E.2d 872).   Further, the court properly denied suppression of defendant's statements concerning the gun.   Those statements followed the giving of Miranda warnings, and were attenuated from any taint resulting from the preceding violations of the Fourth Amendment and Miranda rule (see, New York v. Harris, 495 U.S. 14, 19, 110 S.Ct. 1640, 109 L.Ed.2d 13;  Oregon v. Elstad, 470 U.S. 298, 314-318, 105 S.Ct. 1285, 84 L.Ed.2d 222;  cf., Brown v. Illinois, supra, at 604-605, 95 S.Ct. 2254).

Thus, we modify the judgment by granting defendant's motion in part and suppressing the drugs and the oral admission of defendant concerning his ownership of the pants, reversing the conviction of criminal possession of a controlled substance in the seventh degree, vacating the sentence imposed thereon, and dismissing count two of the indictment.

Judgment unanimously modified on the law and as modified affirmed.

MEMORANDUM: