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

229
KA 11-01343
PRESENT: CENTRA, J.P., FAHEY, CARNI, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JUSTIN BOYSON, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE, MITCHELL GORIS STOKES &
O’SULLIVAN, LLC, CAZENOVIA (STEWART F. HANCOCK, JR., OF COUNSEL), FOR
DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered June 20, 2011. The judgment
convicted defendant, upon his plea of guilty, of criminal possession
of a controlled substance in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the plea is vacated, that part of the
omnibus motion seeking to suppress the evidence seized by the police
during the search of defendant’s person incident to his unlawful
arrest is granted, and the matter is remitted to Supreme Court,
Onondaga County, for further proceedings on the indictment.

     Memorandum: On appeal from a judgment convicting him, upon his
plea of guilty, of criminal possession of a controlled substance in
the second degree (Penal Law § 220.18 [3]), defendant contends that
Supreme Court erred in denying that part of his omnibus motion seeking
to suppress controlled substances seized from his person and his
residence. We agree in part with defendant. Because the evidence at
the suppression hearing established that defendant was arrested inside
his home without a warrant and in the absence of exigent
circumstances, the arrest was unlawful, and thus the court erred in
denying his motion insofar as it sought suppression of the small
amount of drugs seized from his person during the search incident to
arrest (see People v Kozlowski, 69 NY2d 761, 762, rearg denied 69 NY2d
985; People v Kilgore, 21 AD3d 1257, 1257-1258; see generally Payton v
New York, 445 US 573). We reject defendant’s contention, however,
that the court erred in refusing to suppress the more substantial
quantity of drugs found by the police in his apartment. The police
seized those drugs during a search executed pursuant to a lawful
warrant, which was based upon “information obtained prior to and
independent of the illegal entry” and was not tainted by any evidence
                                 -2-                           229
                                                         KA 11-01343

that should have been suppressed because of the Payton violation
(People v Arnau, 58 NY2d 27, 33; see generally CPL art 690; People v
Hanlon, 36 NY2d 549, 559).

     We reject defendant’s contention that the package of cocaine that
was sent from Paraguay and addressed to him was unlawfully seized by
customs agents in violation of 19 USC § 482. Given the size and
weight of the package, the customs agents reasonably suspected that it
may contain merchandise that was imported contrary to law, and thus a
search of the package was lawful under 19 USC § 482 even in the
absence of any reason to believe that the package contained drugs or
contraband (see United States v Ramsey, 431 US 606, 611-615; see
generally United States v Gaviria, 805 F2d 1108, 1111-1112, cert
denied 481 US 1031). In any event, even if defendant’s package had
been opened in violation of 19 USC § 482, we conclude that defendant’s
constitutional rights were not violated, and therefore suppression of
the contents of that package was not required (see People v Patterson,
78 NY2d 711, 716-717; see also People v Crawley, 265 AD2d 905, 905, lv
denied 94 NY2d 821). Defendant’s constitutional rights were not
violated inasmuch as the opening of the package from overseas
constituted a border search (see Ramsey, 431 US at 620-621), which may
be conducted “without probable cause or a warrant, in order to
regulate the collection of duties and to prevent the introduction of
contraband into this country” (United States v Montoya de Hernandez,
473 US 531, 537).

     We therefore reverse the judgment of conviction, vacate the
guilty plea, grant that part of defendant’s omnibus motion seeking to
suppress the evidence seized by the police during the search of
defendant’s person incident to his unlawful arrest, and remit the
matter to Supreme Court for further proceedings on the indictment.




Entered:   April 26, 2013                       Frances E. Cafarell
                                                Clerk of the Court
