Opinion
Filed May 2, 2001.
Appeal from Judgment of Erie County Court, Rogowski, J. — Criminal Possession Controlled Substance, 5th Degree.
PRESENT: PINE, J.P., HAYES, WISNER, KEHOE AND BURNS, JJ.
Judgment unanimously reversed on the law, motion to suppress granted and indictment dismissed.
Memorandum:
Defendant appeals from a judgment convicting her after a jury trial of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06). As the People properly concede, County Court should have granted defendant's motion to suppress the contraband seized by the police because it was not in plain view ( see, People v. Diaz, 81 N.Y.2d 106, 110-111; People v. Robinson, 144 A.D.2d 960, 960-961). We therefore reverse the judgment of conviction, grant the motion to suppress and dismiss the indictment.