Opinion
July 11, 1996
Appeal from the County Court of Albany County (Doyle, J.).
Defendant was indicted for criminal possession of a controlled substance in the first degree (count one) and criminal impersonation in the second degree (count two). In respect to the first count of the indictment, defendant was jointly charged with codefendant Porter F. Banks ( see, People v. Banks, 85 N.Y.2d 558, cert denied ___ US ___, 116 S Ct 187). The reversal by the Court of Appeals in People v. Banks ( supra) mandates dismissal of the first count of defendant's indictment under similar reasoning.
As to the second count against defendant, we hold otherwise. The count stems independently from the continued involuntary detention which invalidated Banks' conviction. It is based on defendant's production of a nonpicture New York driver's license issued to "Thomas Cooper" and defendant's response that he was, indeed, "Thomas Cooper" when asked for identification after a State Trooper had stopped the vehicle that defendant was driving, in which Banks was a passenger. We consider defendant's conduct in this regard as a "wholly independent affirmative act unaffected by the taint of defendant's illegal [detention]" ( People v. Glover, 215 A.D.2d 900, 903). Thus, defendant's conviction of the second count was lawfully obtained and should be affirmed.
Cardona, P.J., Mercure, White and Peters, JJ., concur. Ordered that the judgment is modified, on the law, by reversing so much thereof as convicted defendant of the crime of criminal possession of a controlled substance in the first degree, and, as so modified, the judgment of conviction should be affirmed. Ordered that the appeal from the order is dismissed, as academic.