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

1225
KA 02-00049
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMES KENDRICK, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JAMES KENDRICK, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Kenneth R. Fisher, J.), rendered February 1, 2001. The appeal was
held by this Court by order entered May 8, 2015, decision was reserved
and the matter was remitted to Supreme Court, Monroe County, for
further proceedings (128 AD3d 1482). The proceedings were held and
completed.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the plea is vacated, that part of the
motion seeking to suppress physical evidence from the vehicle is
granted, and the matter is remitted to Supreme Court, Monroe County,
for further proceedings on the indictment.

     Memorandum: Defendant appeals 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 [1]). When this
appeal was previously before us, we concluded that, as the People
correctly conceded, Supreme Court (Fisher, J.) erred in determining
that defendant lacked standing to challenge the legality of the police
search of a vehicle in which a large quantity of cocaine was found in
the back seat (People v Kendrick, 128 AD3d 1482, 1482-1483). We
further concluded that the error was not harmless because there was a
reasonable possibility that the error contributed to defendant’s
decision to plead guilty. Upon remittal, the court (Winslow, J.)
conducted a suppression hearing, following which it refused to
suppress the cocaine, ruling that the People proved that the driver of
the vehicle voluntarily consented to the search of the vehicle, and
that the warrantless search was therefore lawful. We now reverse.

     “It is the People’s burden to establish the voluntariness of
                                 -2-                          1225
                                                         KA 02-00049

defendant’s consent, and that burden is not easily carried, for a
consent to search is not voluntary unless ‘it is a true act of the
will, an unequivocal product of an essentially free and unconstrained
choice. Voluntariness is incompatible with official coercion, actual
or implicit, overt or subtle’ ” (People v Packer, 49 AD3d 184, 187,
affd 10 NY3d 915, quoting People v Gonzalez, 39 NY2d 122, 128). “An
important, although not dispositive, factor in determining the
voluntariness of an apparent consent is whether the consenter is in
custody or under arrest, and the circumstances surrounding the custody
or arrest” (Gonzalez, 39 NY2d at 128).

     Here, defendant was a front seat passenger in the vehicle in
which the cocaine was found by the police. The only other occupant
was the driver, who owned the vehicle and consented to the police
search. At the suppression hearing, the sole witness called by the
People was the police officer who obtained consent to search from the
driver. That officer acknowledged, however, that she was not involved
in the stop of the vehicle and did not know the basis for the stop.
She was unaware whether the driver committed any traffic infractions
and did not know why the driver was taken into custody. According to
the officer, she came into contact with the driver in an interview
room at the police station at approximately 8:00 p.m., which was more
than 4½ hours after the vehicle was stopped. The officer did not know
who, if anyone, had questioned the driver before she entered the
interview room; did not know whether anyone had advised him of his
Miranda rights; did not know whether he had been handcuffed prior to
her arrival; did not know whether he had been given any food or drink;
and did not know whether he had been allowed to make any telephone
calls. The officer merely testified that the driver spontaneously
told her during the interview that there was cocaine in the back seat
of his vehicle, and that he then voluntarily consented to the search
by signing a consent to search form.

     We conclude that, “[b]ecause the People failed to present
evidence at the suppression hearing establishing the legality of the
police conduct, [the driver’s] purported consent to the search of his
vehicle was involuntary[,] and all evidence seized from the vehicle as
a result of that consent should have been suppressed” (People v Purdy,
106 AD3d 1521, 1523; see Packer, 49 AD3d at 187-189). We therefore
reverse the judgment, vacate the plea, grant defendant’s omnibus
motion insofar as it sought suppression of the cocaine found in the
vehicle, and remit the matter to Supreme Court for further proceedings
on the indictment.

     In light of our determination, we do not address the contention
raised by defendant in his pro se supplemental brief.




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court
