                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 24, 2014                     105674
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

HENRY LEONARD,
                    Appellant.
________________________________


Calendar Date:   May 27, 2014

Before:   Lahtinen, J.P., McCarthy, Garry, Lynch and Clark, JJ.

                             __________


     Martin J. McGuinness, Queensbury, for appellant.

      James A. Murphy III, District Attorney, Ballston Spa (Ann
C. Sullivan of counsel), for respondent.

                             __________


Clark, J.

      Appeal from a judgment of the County Court of Washington
County (McKeighan, J.), rendered January 4, 2013, convicting
defendant upon his plea of guilty of the crime of criminal
possession of a controlled substance in the third degree (two
counts) and the traffic infraction of speeding.

      On August 2, 2012 at 12:40 a.m., defendant was stopped for
speeding on State Route 4 in the Town of Fort Ann, Washington
County. Upon checking the validity of defendant's driver's
license, the state trooper effectuating the traffic stop
discovered that there was an active warrant for defendant's
arrest. Defendant, the sole occupant and registered owner of the
vehicle, was placed into custody and arrangements were made for
his vehicle to be towed. Prior to towing the vehicle, an
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inventory search was conducted and, among other things, a baggie
containing a substance later identified as 41 grams of heroin was
discovered inside a shoe found in an open, clear plastic bag
behind the driver's seat.

      Defendant was subsequently charged in an indictment with
two counts of criminal possession of a controlled substance in
the third degree and speeding. Following the denial of
defendant's motion to suppress the heroin, defendant pleaded
guilty to the indictment without waiving his right to appeal. He
was sentenced to an aggregate prison term of 10 years to be
followed by three years of postrelease supervision. Defendant
now appeals, challenging County Court's refusal to suppress the
heroin. Among other things, defendant argues that the decision
to impound his vehicle was not made pursuant to standardized
police procedure1 and that the resulting inventory search was not
reasonable.

      We reverse. Following a lawful arrest of the driver of a
vehicle, "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 [2012], quoting
Colorado v Bertine, 479 US 367, 374 [1987]). To this end,
"courts have insisted that an inventory search be conducted
according to a familiar routine procedure and that the procedure
meet two standards of reasonableness" (People v Galak, 80 NY2d
715, 719 [1993] [internal citation omitted]; see Colorado v
Bertine, 479 US at 371). Specifically, the procedures must be
"designed to meet the legitimate objectives of the search while


    1
        Although not preserved for our review (see People v
Jacquin, 71 NY2d 825, 826-827 [1988]; People v Durrin, 32 AD3d
665, 666 [2006]), were we to address the initial decision to
impound defendant's vehicle, we would agree with defendant that
the People failed to meet their burden of demonstrating that such
decision was based upon the existence of some standardized
criteria or routine procedure (see Colorado v Bertine, 479 US
367, 374-375 [1987]; People v O'Connell, 188 AD2d 902, 903
[1992]).
                              -3-                105674

limiting the discretion of the officer in the field" (People v
Briggs, 21 AD3d 1218, 1219 [2005], lv denied 5 NY3d 851 [2005];
see Florida v Wells, 495 US 1, 4 [1990]; People v Johnson, 1 NY3d
252, 256 [2003]; People v Galak, 80 NY2d at 719).

      Here, the transcript of the November 2012 suppression
hearing fails to support a determination that the conduct of the
police was reasonable. Although not fatal to their argument
against suppression (see People v Gomez, 13 NY3d 6, 11 [2009]),
the People failed to offer a copy of the State Police procedure
manual into evidence. Additionally, the People also failed to
ask any substantive questions of their witnesses so as to
otherwise establish (1) that the State Police had a standardized
procedure, (2) that such procedure was reasonable, and (3) that
it was followed here. In this regard, the testimony of the
troopers demonstrates little discussion of their professional
experience so as to help illustrate an established departmental
procedure, only a vague explanation of their decisions made at
the time of the search, and meager proof that such decisions
resulted from an established procedure designed to limit their
discretion. In fact, Trooper Jason Gutowski's testimony, coupled
with the incomplete vehicle impound inventory form he prepared
following defendant's arrest, exposed an exercise of his
unfettered personal discretion. Specifically, while
acknowledging that one of the main purposes for an inventory
search is to protect the property of the defendant, Gutowski
repeatedly indicated that, if certain items were not included on
his inventory list – i.e., money, CDs, a CD changer, a GPS – it
was because he did not consider the items to be of any value.
Gutowski also explained that he prepared the inventory search
form only from his memory after returning to the barracks and
that a copy of the form was not provided to defendant. Thus,
based upon the record before us, we are unable to determine that
the police conduct was sufficiently standardized and designed to
produce a meaningful inventory of the contents of defendant's
vehicle so as to be reasonable (cf. People v Walker, 22 NY3d at
127).

      Furthermore, we respectfully disagree with our dissenting
colleague that the decision to impound defendant's vehicle was
                               -4-                105674

the only option available2 and, further, that a reasonable,
standardized procedure for the ensuing inventory search was
properly established. Rather, due to the insufficiency of the
proof at the suppression hearing, we lack the information
necessary to arrive at such conclusions absent conjecture. For
example, we know that the traffic stop occurred on State Route 4
a little after midnight. However, we do not know if, perhaps,
defendant was stopped in or near the parking lot of a gas
station, business or other property where he could have safely
left his vehicle without the need for towing. We also do not
know whether an acquaintance of defendant was available and able
to take possession of the vehicle, making impoundment
unnecessary. Nor do we know if State Police procedure required
that the troopers check into any of these alternatives before
making the decision to impound. Further, the testimony of
Gutowski merely establishes his recollection of the contents of
the State Police inventory search manual that he had received
years earlier, not what the manual actually directs or the
obligations imposed by the policies contained therein. As stated
above, absent admission of the manual into evidence or discussion
regarding Gutowski's experience and conduct in similar
situations, we feel his testimony was insufficient to ensure
compliance with constitutional mandates. While we agree that
officers in the field are to be afforded a certain minimal amount
of discretion, the lack of proof here makes it impossible to
characterize this trooper's discretion as consistent with a
reasonable standardized procedure.

      Accordingly, we conclude that the People failed to meet
their burden and the heroin found in the car should be
suppressed.3 Defendant's remaining arguments have been rendered


     2
        We reiterate that this argument is not preserved for our
review. However, we address it here solely in the context of
responding to the dissent.
     3
        Inasmuch as the People have not conceded that those
counts are otherwise unsupported by the evidence, we are not
dismissing counts 1 and 2 of the indictment (cf. People v Small,
110 AD3d 1138, 1141 [2013]). However, we note that "[t]he Court
                                -5-                105674

academic by our decision.

        Lahtinen, J.P., McCarthy and Garry, JJ., concur.


Lynch, J. (dissenting).

      I respectfully dissent.1 The two state troopers who
testified at the suppression hearing, each with 10 years of
experience, explained that it is State Police policy to conduct
an inventory search when a vehicle is towed. Trooper Jason
Gutowski, who performed the search, testified that he was issued
an inventory search manual during basic training. He explained
that, pursuant to the manual, troopers "are required to perform
as thorough a search as possible of the vehicle . . . and its
contents," to "search every item thoroughly," "without obviously
breaking anything," and to identify items "of value" on an
inventory list. Here, the record shows that Gutowski searched
the front and rear seat interior areas, the glove box, console
and trunk. During the search, he located an open plastic bag
behind the driver's seat, containing items of clothing and shoes.
Consistent with the policy manual, he examined each individual
item for valuables, which he described as "[j]ewelry, money,
items such as that." Gutowski found the baggie containing the
heroin inside a sneaker removed from this bag. On the inventory


of Appeals has made clear that the People are entitled to one
full-opportunity to present relevant evidence at a suppression
hearing" (People v Weddington, 192 AD2d 750, 751 [1993]; see
People v Malinsky, 15 NY2d 86, 95-96 [1965]), and the People have
already had that opportunity here.
    1
        Since defendant did not preserve a challenge to the
initial decision to impound the vehicle, that issue should not be
addressed (see People v Luperon, 85 NY2d 71, 78 [1995]; People v
Jacquin, 71 NY2d 825, 826-827 [1988]). That being said, it is
also my view that the decision by the troopers to impound the
vehicle was the only option they had and was not unreasonable
under either the US or NY Constitution (see US Const 4th Amend;
NY Const, art I, §12).
                              -6-                105674

form, he listed "bag of assorted clothes and sneakers, plastic
baggie containing approximately 41 grams of off white powder" and
a speaker box removed from the trunk. As the majority notes, the
People were not obligated to submit a copy of the procedures
manual into evidence, and testimony of the inventory search
policy "in general terms" may be sufficient (People v Walker, 20
NY3d 122, 124-125 [2012]). In my view, the record establishes
that the troopers were guided by a "'single familiar standard'"
when they conducted their inventory search (People v Walker, 194
AD2d 92, 94 [1993], quoting Colorado v Bertine, 479 US 367, 375
[1987]).

      Defendant maintains that the search was invalid because the
troopers were accorded too much discretion in deciding what items
were valuable enough to be inventoried. Gutowski acknowledged
that the State Police manual does not define what value an item
has to have before being listed, leaving that determination to
the trooper's discretion. As the majority correctly explains,
the inventory procedures "must limit the discretion of the
officer in the field" (People v Galak, 80 NY2d 715, 719 [1993]).
At the same time, however, officers in the field must also be
accorded certain latitude in conducting a search (see id.). The
operative point here is that the People met their burden of
proving that a reasonable, standardized procedure was utilized in
conducting the inventory search. The circumstances called for
the towing of defendant's vehicle, and there is no indication
that the ensuing search was prompted by a concern of other
criminal activity (see People v Briggs, 21 AD3d 1218, 1219
[2005], lv denied 5 NY3d 851 [2005]). The itemized inspection of
the open bag was required under the policy and guided by the
direction to inventory items of value. Unlike the situation in
People v Galak (80 NY2d at 719-722), this policy imposed an
obligation on the trooper to prepare a proper inventory. That
the task involved a discretionary call in assessing the value of
an item does not render the process arbitrary (see United States
v Lopez, 547 F3d 364, 370-372 [2d Cir 2008], cert denied 556 US
1114 [2009]). Granted, this was not a model inventory, for
Gutkowski conceded that there were "numerous items strewn about"
that he did not include in the inventory list because he did not
consider the items to have any value. Whether he should have
included certain items that may have been in the vehicle on the
                              -7-                  105674

inventory list, however, does not undermine what was otherwise a
reasonable procedure (see id.). Given the miscellaneous items of
limited value typically found in a vehicle, a separate
itemization of each item regardless of value was not necessary
(see id.). As in People v Walker (20 NY3d at 126-127) and
Colorado v Bertine (479 US at 369), the inventory here was
adequate.



      ORDERED that the judgment is reversed, plea vacated, motion
to suppress the heroin granted, and matter remitted to the County
Court of Washington County for further proceedings not
inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
