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

1300
KA 16-00383
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSHUA B. KLOSSNER, DEFENDANT-APPELLANT.


LEONARD, CURLEY & LONGERETTA, PLLC, ROME (JOHN LEONARD OF COUNSEL),
FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (John S.
Balzano, A.J.), rendered July 1, 2014. The judgment convicted
defendant, upon a jury verdict, of driving while intoxicated, as a
class E felony, failure to stay in lane and consumption or possession
of an alcoholic beverage in a motor vehicle.

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of, inter alia, driving while intoxicated as a class E felony
(Vehicle and Traffic Law §§ 1192 [3]; 1193 [1] [c] [i] [A]), defendant
contends that County Court erred in refusing to suppress evidence
obtained as the result of the warrantless search of his vehicle. We
reject that contention. The evidence at the suppression hearing
established that, shortly before 3:00 a.m., the arresting officer was
driving east on Gifford Hill Road when he noticed a vehicle on the
side of the road. The driver’s side of the vehicle was on the paved
portion of the road, the passenger side was in the ditch, and the
position of the vehicle made it impossible to maneuver the vehicle out
of the ditch and back onto the road. The officer exited his patrol
car, approached the vehicle to investigate the accident and observed
that no one was inside the vehicle, although the engine was still warm
and he could smell exhaust. The officer testified that he was
concerned with determining the cause of the accident and whether
anyone was injured and needed assistance. The officer opened the
unlocked driver’s side door, leaned inside the vehicle, and looked for
blood or other signs of injury. In one of the cupholders in the
console, he saw a tall drinking glass containing a dark liquid that
smelled of alcohol, and he saw an open 12-pack of beer in the
backseat. There was an open can of chili in another cupholder in the
console, and the officer noticed that chili was splattered on the
                                 -2-                          1300
                                                         KA 16-00383

dashboard. He returned to his vehicle and resumed traveling east on
Gifford Hill Road for approximately two-thirds of a mile, where he
encountered defendant. Defendant acknowledged that he was the owner
of the vehicle that was partially in the ditch, and he identified the
dark liquid in the tall drinking glass as rum and Coke.

     At the outset, we agree with defendant that the officer’s act of
opening the door of the vehicle and leaning inside constituted a
search (see People v Vidal, 71 AD2d 962, 963). Contrary to
defendant’s contention, however, we conclude that the search of the
vehicle was lawful. Under the circumstances, defendant had no
reasonable expectation of privacy in the abandoned vehicle, and the
officer was justified in conducting the limited search (see People v
Sparks, 13 AD3d 813, 814-815, lv denied 4 NY3d 836). In addition, we
agree with the People that the warrantless search of the vehicle in
these circumstances was lawful because the search came within the
emergency exception to the warrant requirement (see People v Mitchell,
39 NY2d 173, 177-178, cert denied 426 US 953; People v Griffiths, 112
AD2d 798, 798, lv denied 67 NY2d 943).




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
