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

1206
KA 13-02201
PRESENT: SMITH, J.P., CENTRA, FAHEY, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILSON J. TARDI, DEFENDANT-APPELLANT.


THOMAS J. EOANNOU, BUFFALO, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered December 2, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree and petit larceny.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]) and petit larceny (§ 155.25), defendant
contends that County Court erred in refusing to suppress the evidence
seized from his vehicle because his vehicle was towed for being
illegally parked and the search thus was unconstitutional. Defendant
failed to preserve that contention for our review “inasmuch as
defendant failed to raise it either in his motion papers or before the
suppression court” (People v Fuentes, 52 AD3d 1297, 1298, lv denied 11
NY3d 736; see People v Facen, 117 AD3d 1463, 1464, lv denied 23 NY3d
1020). In any event, that contention is without merit, as is
defendant’s contention that the court also erred in refusing to
suppress the evidence seized during the search on the grounds that the
Cheektowaga Police Department’s written policy on inventory searches
is unconstitutional and the police officers acted improperly when they
impounded and towed his car.

     The police officers arrested defendant for stealing property from
a Target store. After the arrest, store security personnel informed
the officers that they had observed defendant, who was known to them
from prior thefts, drive the vehicle to the store, and that he was the
sole occupant of the vehicle. In addition, store personnel indicated
that they wanted the vehicle removed from the store’s parking lot.
The officers, acting in accordance with that indication and pursuant
to a written Cheektowaga Police Department policy, impounded the
                                 -2-                          1206
                                                         KA 13-02201

vehicle and performed an inventory search of its contents prior to
towing it away. A handgun was found in the vehicle during that
search.

     It is well settled that, “[w]hen the driver of a vehicle is
arrested, the police may impound the car, and conduct an inventory
search, where they act pursuant to ‘reasonable police regulations
relating to inventory procedures administered in good faith’ ” (People
v Walker, 20 NY3d 122, 125, quoting Colorado v Bertine, 479 US 367,
374). Thus, “[h]aving arrested the defendant [in] a public [parking
lot], the officers were thereafter entitled to impound the vehicle”
(People v Gallego, 155 AD2d 687, 689, lv denied 75 NY2d 919; see
People v Walker, 267 AD2d 994, 994-995, lv denied 94 NY2d 953).
Furthermore, “[i]t is settled law that the police may search an
impounded vehicle to inventory its contents” (People v Gonzalez, 62
NY2d 386, 388). “Such searches, conducted as routine procedures, are
permitted to protect an owner’s property while it remains in police
custody, to protect the police against false claims for missing
property and to protect the police from potential danger” (id. at 388-
389). Here, the police officers properly impounded the vehicle that
defendant drove to the scene of the crime and performed an inventory
search of that vehicle pursuant to a reasonable Cheektowaga Police
Department procedure, during which they discovered the handgun.
Consequently, the court properly refused to suppress the evidence
seized during that inventory search.

     We have considered defendant’s remaining contentions regarding
the search and conclude that they are without merit.




Entered:   November 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
