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

The PEOPLE, etc., Appellant, v. Joel COLLADO, Respondent.

Decided: April 28, 2003

ANITA R. FLORIO, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN and BARRY A. COZIER, JJ. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Lisa Drury, and Elaine E. Oh of counsel), for appellant. Donald L. Schechter, Great Neck, NY, for respondent.

Appeal by the People from an order of the Supreme Court, Queens County (Rosenzweig, J.), dated July 2, 2002, which, after a hearing, granted that branch of the defendant's omnibus motion which was to suppress physical evidence.   Justice Florio has been substituted for the late Justice O'Brien (see 22 NYCRR 670.1[c] ).

ORDERED that the order is reversed, on the law, that branch of the defendant's omnibus motion which was to suppress physical evidence is denied, and the matter is remitted to the Supreme Court, Queens County, for further proceedings.

The defendant was a passenger in a van which was stopped by the police due to a defective brake light.   The driver was arrested when the police found a “ziploc” bag in his possession containing a substance believed to be cocaine, and the front seat passenger was arrested when the police recovered an imitation air pistol from his waistband.   After the occupants were removed from the van, the police searched the van and found a weapon on the rear seat, where the defendant had been sitting.   The defendant was charged with possession of the weapon.   Following a pretrial suppression hearing, the Supreme Court granted that branch of the defendant's omnibus motion which was to suppress the weapon.

The hearing court determined that the actions of the police officers were lawful with respect to the initial stop for a traffic violation (see People v. Robinson, 97 N.Y.2d 341, 741 N.Y.S.2d 147, 767 N.E.2d 638), and that the arrests of the driver and the front seat passenger were proper.   The court further determined that it was permissible for the police officers to order the occupants to exit the van (see People v. Robinson, 74 N.Y.2d 773, 774, 545 N.Y.S.2d 90, 543 N.E.2d 733, cert. denied 493 U.S. 966, 110 S.Ct. 411, 107 L.Ed.2d 376).   These findings are not contested on appeal.   However, the hearing court concluded that the warrantless search of the van, after the occupants had been removed from it, was unlawful, because there was no longer any danger to the police officers' safety.

The search of the van was permissible under the automobile exception to the warrant requirement (see People v. Blasich, 73 N.Y.2d 673, 543 N.Y.S.2d 40, 541 N.E.2d 40).   After the police arrested the driver and the front seat passenger, they had probable cause to believe that the van might contain other drugs or weapons (see People v. Blasich, supra;  People v. Langen, 60 N.Y.2d 170, 469 N.Y.S.2d 44, 456 N.E.2d 1167, cert. denied 465 U.S. 1028, 104 S.Ct. 1287, 79 L.Ed.2d 690;  People v. Belton, 55 N.Y.2d 49, 447 N.Y.S.2d 873, 432 N.E.2d 745;  People v. Rives, 237 A.D.2d 312, 654 N.Y.S.2d 797;  People v. Suarez, 187 A.D.2d 620, 589 N.Y.S.2d 930).   Accordingly, that branch of the defendant's motion which was to suppress the weapon should have been denied.

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