Opinion
2021–00923 Ind. No. 327/18
08-17-2022
The PEOPLE, etc., respondent, v. Bradley AUGUSTIN, appellant.
Larkin, Ingrassia, LLP, Newburgh, NY (John Ingrassia of counsel), for appellant. David M. Hoovler, District Attorney, Goshen, NY (Andrew R. Kass of counsel), for respondent.
Larkin, Ingrassia, LLP, Newburgh, NY (John Ingrassia of counsel), for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Andrew R. Kass of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Orange County (Craig Stephen Brown, J., at plea; Robert H. Freehill, J., at sentence), rendered December 12, 2020, convicting him of criminal possession of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the fourth degree, resisting arrest, and unlawful possession of marihuana, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial (Craig Stephen Brown, J.), after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the appeal from so much of the judgment as convicted the defendant of unlawful possession of marihuana is dismissed as academic; and it is further,
ORDERED that the judgment is affirmed insofar as reviewed.
The defendant's conviction of unlawful possession of marihuana " ‘became a nullity by operation of law, independently of any appeal, and without requiring any action by this [c]ourt,’ " pursuant to CPL 160.50(5) (as added by L 2019, ch 131 [eff Aug. 28, 2019]) ( People v. Johnson, 73 Misc.3d 127[A], 2021 N.Y. Slip Op. 50885[U], *2, 2021 WL 4270278 [App. Term, 2d Dept., 2d, 11th & 13th Jud Dists] ), quoting People v. Disano, 67 Misc.3d 131[A], 2020 N.Y. Slip Op. 50439[U], *1, 2020 WL 1932343 [App. Term, 1st Dept.] ). Consequently, the appeal from so much of the judgment as convicted the defendant of unlawful possession of marihuana must be dismissed as academic (see People v. Hay, 207 A.D.3d 748, 170 N.Y.S.3d 914, [2d Dept.] ; People v. Johns, 73 Misc.3d 127[A], 2021 N.Y. Slip Op. 50885[U], *2 ; People v. Disano, 67 Misc.3d 131[A], 2020 N.Y. Slip Op. 50439[U], *1 ).
The County Court properly denied suppression of the physical evidence. " ‘The factual findings and credibility determinations of a hearing court are accorded great deference on appeal, and will not be disturbed unless clearly unsupported by the record’ " ( People v. Peterson, 22 A.D.3d 770, 771, 804 N.Y.S.2d 375, quoting People v. Parker, 306 A.D.2d 543, 543, 761 N.Y.S.2d 850 ; see People v. Benbow, 193 A.D.3d 869, 871, 145 N.Y.S.3d 584 ). Here, contrary to the defendant's contention, the record supports the court's factual findings that the defendant was not subjected to a strip search or a cavity search (see People v. Julien, 201 A.D.3d 948, 950, 157 N.Y.S.3d 750 ; People v. Lesane, 184 A.D.3d 461, 461, 124 N.Y.S.3d 680 ; People v. Placek, 58 A.D.3d 538, 539, 870 N.Y.S.2d 788 ; People v. Brown, 24 A.D.3d 565, 565, 806 N.Y.S.2d 682 ). Moreover, contrary to the defendant's contention, the police officers’ actions, as found by the court, of patting down the defendant incident to a lawful arrest and then reaching into the defendant's pant leg and underwear to recover two bags of drugs near his groin and buttocks, were reasonable under the circumstances (see People v. Lesane, 184 A.D.3d at 461, 124 N.Y.S.3d 680 ; People v. Rasul, 121 A.D.3d 1413, 1415–1416, 995 N.Y.S.2d 380 ; People v. Contant, 90 A.D.3d 779, 780, 935 N.Y.S.2d 35 ; People v. Glanton, 72 A.D.3d 1536, 1537, 899 N.Y.S.2d 504 ).
BRATHWAITE NELSON, J.P., RIVERA, CHAMBERS and ZAYAS, JJ., concur.