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

1035
KA 12-00368
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

AARON J. JOHNSON, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (LINDA M. CAMPBELL OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Victoria M.
Argento, J.), rendered October 13, 2011. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the third degree, criminal possession of a
controlled substance in the fifth degree, criminal possession of
marihuana in the fifth degree and criminally using drug paraphernalia
in the second degree (two counts).

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

     Memorandum: On appeal from a judgment convicting him upon a plea
of guilty of, inter alia, criminal possession of a controlled
substance in the third degree (Penal Law § 220.16 [1]) and criminal
possession of a controlled substance in the fifth degree (§ 220.06
[5]), defendant contends that County Court erred in refusing to
suppress physical evidence and his inculpatory statement. We reject
that contention.

     As police officers approached an apartment to execute a search
warrant, the validity of which is not at issue on this appeal, they
observed defendant standing in the driveway, only 10 feet away from
the “wide open” door of the unoccupied apartment. Officers physically
detained defendant while they secured the apartment and, after
observing large quantities of cocaine and marihuana in open view on a
table in the living room of the apartment, the officers arrested him.
Defendant was brought into the apartment while officers conducted a
more thorough search of the premises and, shortly thereafter,
defendant identified the cell phone on the table next to the drugs as
belonging to him. When the officers conducted a search of defendant’s
person incident to arrest, they recovered documents linking him to the
apartment.
                                 -2-                          1035
                                                         KA 12-00368

     Contrary to defendant’s contention, we conclude that defendant
was lawfully detained incident to the execution of the search warrant
inasmuch as he was in the “immediate vicinity of the premises to be
searched” (Bailey v United States, ___ US ___, ___, 133 S Ct 1031,
1041). Although the Supreme Court has not defined “immediate
vicinity,” the Court has limited it “to the area in which [a person]
poses a real threat to the safe and efficient execution of a search
warrant” (id. at ___, 133 S Ct at 1042). Factors to consider include
“the lawful limits of the premises, whether the [person] was within
the line of sight of his [or her] dwelling, [and] the ease of reentry
from the [person’s] location” (id.). In our view, defendant was in
the immediate vicinity of the premises to be searched and, therefore,
was lawfully detained (see People v Sanin, 60 NY2d 575, 576-577;
People v Jackson, 88 AD3d 451, 451-452, lv denied 18 NY3d 884; cf.
People v Reyes, 210 AD2d 159, 160, lv denied 84 NY2d 1037, cert
denied 515 US 1152).

     Once the large quantity of drugs and money were located in plain
view in the apartment, there was probable cause to arrest defendant
inasmuch as it was reasonable to conclude that “only trusted members
of the [drug] operation would be permitted to enter an apartment
containing a large cache of drugs[ and] money . . . in plain view”
(People v Bundy, 90 NY2d 918, 920; see People v Jackson, 44 AD3d 364,
364, lv denied 9 NY3d 991).

     As defendant correctly contends, “a person’s mere propinquity to
others independently suspected of criminal activity does not, without
more, give rise to probable cause to search that person” (Ybarra v
Illinois, 444 US 85, 91, reh denied 444 US 1049). Here, however,
defendant was not merely near others suspected of criminal activity.
Rather, defendant was the person suspected of criminal activity
because he was the only person in or around an open apartment in which
large quantities of drugs were located in plain view. We thus
conclude that defendant’s reliance on Ybarra is misplaced.

      “Because the arrest was supported by probable cause, the police
were authorized to search defendant incident to that lawful arrest and
thus properly seized the inculpatory paper[s] from defendant’s pocket
during that search” (People v Ralston, 303 AD2d 1014, 1014-1015, lv
denied 100 NY2d 565; see generally People v Weintraub, 35 NY2d 351,
354).

     Defendant further contends that the court erred in refusing to
suppress his statement identifying the cell phone, which was located
on the table next to the drugs, as belonging to him. Relying on Rhode
Island v Innis (446 US 291) and People v Ferro (63 NY2d 316, 321-323,
cert denied 472 US 1007), he specifically contends that the police
officers engaged in the functional equivalent of custodial
interrogation without the benefit of Miranda warnings when they placed
him in an area near the cell phone and questioned him concerning
pedigree information. We reject that contention. The testimony from
the suppression hearing established that the police officers did not
in any way draw attention to the phone and “there is no indication
that the police acted in a manner that ‘should reasonably have been
                                 -3-                          1035
                                                         KA 12-00368

anticipated to evoke a statement from the defendant’ [concerning the
phone] or that the statement[] [was] not self-generating” (People v
Hann, 198 AD2d 904, 904, lv denied 83 NY2d 805, quoting People v
Rivers, 56 NY2d 476, 480, rearg denied 57 NY2d 775; see People v
Castro, 73 AD3d 800, 800-801, lv denied 15 NY3d 803; People v Arriaga,
309 AD2d 544, 545, lv denied 1 NY3d 624; cf. Ferro, 63 NY2d at 323).
Finally, the questions of the officers relating only to pedigree
information “were not ‘subtly designed to elicit a statement’ from
defendant” (People v Lipscomb, 214 AD2d 970, 970, lv denied 86 NY2d
797, cert denied 516 US 1078).




Entered:   October 2, 2015                     Frances E. Cafarell
                                               Clerk of the Court
