PEOPLE v. BACON

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

The PEOPLE of the State of New York, Respondent, v. John BACON, Defendant-Appellant.

Decided: June 28, 2005

BUCKLEY, P.J., TOM, SULLIVAN, WILLIAMS, JJ. Andrew C. Fine and Laura R. Johnson, The Legal Aid Society, New York (Laura Boyd and Robert Budner of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Madeleine Guilmain of counsel), for respondent.

Judgment, Supreme Court, New York County (Carol A. Berkman, J.), rendered May 30, 2001, convicting defendant, upon his guilty plea, of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to a term of 2 1/212 to 5 years, unanimously affirmed.

This appeal was held in abeyance and the matter remanded to Supreme Court for a hearing on defendant's motion to suppress evidence.   On remand, Supreme Court (Marcy L. Kahn, J.) conducted a Mapp hearing and denied the motion, finding that the evidence was properly recovered from defendant's person.

At the hearing, Police Officer Robert Savage testified that, on the evening of December 29, 2000, he and his partner stopped defendant for riding his bicycle on the sidewalk on Amsterdam Avenue in Manhattan.   Upon reviewing defendant's identification, the officers discovered an outstanding arrest warrant, allegedly issued in Westchester County, and took defendant into custody.   At some later time, a third officer conducted a patdown search, and recovered 67 bags and one tinfoil-wrapped packet of crack cocaine, nine packages of heroin and $105 in cash from defendant's pocket.

It is uncontested that the outstanding warrant was issued in Criminal Court, New York County, on October 3, 1997 and remained in effect at the time of defendant's arrest.   Defendant now contends that the evidence was unlawfully seized because Officer Savage could not recall whether the search was conducted at his direction;  whether it was conducted contemporaneously, at the scene, or later at the precinct house;  or whether the officer who conducted the search was working with Officer Savage's unit or not.   Defendant concedes that he was lawfully stopped for riding a bicycle on the sidewalk, in violation of New York City regulations, and that he was lawfully arrested in connection with an outstanding warrant.

 There is no merit to defendant's contention that because the officer who conducted the patdown was not informed of the outstanding warrant, he lacked probable cause to conduct the search.   Once an arrest is made, incriminating evidence need not be immediately discovered in order to be validly seized (see Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 [1968];  Ker v. State of California, 374 U.S. 23, 42-43, 83 S.Ct. 1623, 10 L.Ed.2d 726 [1963];  cf. People v. Evans, 43 N.Y.2d 160, 165-166, 400 N.Y.S.2d 810, 371 N.E.2d 528 [1977] [pre-arrest search] ).   Evidence recovered in a search at a police station is admissible if the antecedent arrest is supported by probable cause (see People v. Boodle, 47 N.Y.2d 398, 402, 418 N.Y.S.2d 352, 391 N.E.2d 1329 [1979], cert. denied 444 U.S. 969, 100 S.Ct. 461, 62 L.Ed.2d 383 [1979];  People v. Defares, 209 A.D.2d 875, 877, 619 N.Y.S.2d 375 [1994], lv. denied 84 N.Y.2d 1030, 623 N.Y.S.2d 186, 647 N.E.2d 458 [1995];  cf. People v. Lee, 126 A.D.2d 568, 570, 511 N.Y.S.2d 27 [1987] ).

 Defendant was sentenced in connection with a negotiated plea agreement.   Defendant acknowledged that he understood the terms of the agreement and was aware of the rights being surrendered.   Nothing in the record suggests that defendant's waiver of his right to trial was other than knowing and intelligent.  “Having received the benefit of the bargain, defendant should be bound by its terms” (People v. Lopez, 190 A.D.2d 545, 593 N.Y.S.2d 1011 [1993] ).

We perceive no basis for reducing the sentence.   We note that defendant's criminal record includes a conviction for attempted rape-a violent felony-as well as a misdemeanor drug conviction.