PEOPLE v. VARGAS (1998)

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

The PEOPLE of the State of New York, Respondent, v. Julio VARGAS, Defendant-Appellant.

Decided: November 12, 1998

Before MILONAS, J.P., and ROSENBERGER, WILLIAMS, TOM and SAXE, JJ.

Theresa A. Foudy, for Respondent. Daniel Hsiung, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Richard Carruthers, J.), rendered September 19, 1995, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 41/212 to 9 years, unanimously affirmed.

The motion court correctly concluded that the search of the flip top cigarette box was proper as incident to the lawful arrest since the property had not yet been reduced to the exclusive control of the police (see, People v. Manigault, 247 A.D.2d 255, 669 N.Y.S.2d 30, lv. denied 92 N.Y.2d 854, 677 N.Y.S.2d 85, 699 N.E.2d 445, 92 N.Y.2d 855, 677 N.Y.S.2d 86, 699 N.E.2d 446; People v. Wylie, 244 A.D.2d 247, 666 N.Y.S.2d 1, lv. denied 91 N.Y.2d 946, 671 N.Y.S.2d 726, 694 N.E.2d 895). Moreover, defendant had not yet been handcuffed when the cigarette box was searched in close proximity to the arrest (People v. Perez, 252 A.D.2d 353, 675 N.Y.S.2d 71).

MEMORANDUM DECISION.

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