        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

387
KA 13-02206
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GILBERTO LOPEZ, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered January 30, 2013. The judgment convicted
defendant, after a nonjury trial, of criminal sale of a controlled
substance in the third degree and criminal possession of a controlled
substance in the third degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Onondaga County Court for
further proceedings.

     Memorandum: Defendant appeals from a judgment convicting him,
upon a nonjury verdict, of criminal sale of a controlled substance in
the third degree (Penal Law § 220.39 [1]) and criminal possession of a
controlled substance in the third degree (§ 220.16 [1]). The
conviction arose from the observations of a police officer conducting
surveillance of a gas station parking lot after reports of drug sales
occurring at that location were received. Shortly after defendant
arrived at the gas station as a passenger in one vehicle (first
vehicle), defendant exited the first vehicle and entered a second
vehicle for about 30 seconds, and then defendant returned to the first
vehicle. When both vehicles left the parking lot, the officer
contacted another police officer, who stopped the first vehicle a
short distance away and found heroin inside the vehicle.

     Meanwhile, the officer conducting surveillance at the gas station
followed the other vehicle to a nearby motel, where he saw the driver
exit the vehicle and enter a motel room. The driver thereafter left
his motel room and was approached by the police. The driver admitted
that he had purchased heroin from defendant at the gas station, and he
consented to a search of the motel room, where the police recovered
heroin that had been purchased from defendant.
                                 -2-                           387
                                                         KA 13-02206

     Defendant was initially indicted on one count of criminal
possession of a controlled substance in the third degree upon
allegations that he possessed heroin at the time of the traffic stop.
That indictment was dismissed after County Court determined that the
traffic stop was unlawful and granted defendant’s motion to suppress
the evidence recovered during the stop. Based upon the statements of
the driver of the other vehicle and the evidence recovered at the
motel, defendant was subsequently indicted with the instant charges
upon allegations that he possessed heroin and sold it to the driver of
the other vehicle while they were at the gas station.

     Defendant contends that the court should have suppressed the
evidence recovered at the motel as the fruit of the illegal traffic
stop. We reject that contention and conclude that the court properly
refused to suppress the evidence without holding a hearing (see
generally People v Pucci, 37 AD3d 1068, 1068, lv denied 8 NY3d 949).
There was no causal connection between the unlawful traffic stop and
the evidence recovered at the motel inasmuch as the police activity at
the motel was based upon the officer’s observations at the gas station
and not upon information obtained as a result of the unlawful stop of
the vehicle in which defendant was a passenger (see People v Cooley,
48 AD3d 1091, 1091, lv denied 10 NY3d 861; People v Washington, 37
AD3d 1131, 1132, lv denied 8 NY3d 992; People v Sommerville, 6 AD3d
1232, 1232, lv denied 3 NY3d 648). Defendant further contends that
the court erred in refusing to suppress the identification of the
police officer who observed defendant at the gas station and then
later viewed defendant at the scene of the unlawful traffic stop
because the identification was the fruit of the unlawful stop. We
conclude that defendant failed to preserve that contention for our
review because he did not move to suppress the identification
testimony on that ground (see generally People v Crouch, 70 AD3d 1369,
1370, lv denied 15 NY3d 773). In any event, we conclude that any
error in the court’s refusal to suppress the identification is
harmless beyond a reasonable doubt. The evidence of guilt is
overwhelming, and there is no reasonable possibility that the error
contributed to the conviction (see generally People v Crimmins, 36
NY2d 230, 237).

     Finally, we agree with defendant that the court did not rule on
his motion to dismiss the indictment based on the People’s alleged
violation of CPL 190.75 (3) in failing to seek leave to represent the
matter to a second grand jury. “CPL 470.15 precludes the Appellate
Division from reviewing an issue that was either decided in
appellant’s favor or was not decided by the trial court” (People v
Ingram, 18 NY3d 948, 949; see People v Chattley, 89 AD3d 1557, 1558).
We therefore hold the case, reserve decision, and remit the matter to
County Court to rule on defendant’s motion.




Entered:   May 6, 2016                          Frances E. Cafarell
                                                Clerk of the Court
