People v. Vellon

Full title: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EDWIN VELLON, Appellant

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 9, 1973

42 A.D.2d 738 (N.Y. App. Div. 1973)

Opinion

July 9, 1973

Appeal by defendant from a judgment of the Supreme Court, Queens County, dated May 26, 1972, convicting him of criminal possession of a dangerous drug in the third degree, and of criminal possession of stolen property in the third degree, and imposing sentence. The appeal brings up for review an order to the same court, rendered February 29, 1972, denying defendant's pretrial motion to suppress evidence. Judgment and order affirmed ( People v. Sullivan, 29 N.Y.2d 69; People v. Robinson, 36 A.D.2d 375). No opinion.

Munder, Acting P.J., Latham, Gulotta and Benjamin, JJ.,Page 739 concur; Martuscello, J., dissents, and votes to reverse, and grant the motion to suppress with the following memorandum:

This is an appeal by defendant from a judgment which convicted him on a jury verdict of criminal possession of a dangerous drug in the third degree and criminal possession of stolen property in the third degree. The appeal also brings up for review the denial of a motion to suppress certain drugs and money seized from defendant's attache case. After defendant was arrested, searched at the scene and taken to the stationhouse, the attache case which he had been carrying, and which he had thrown on the back seat of his car immediately preceding the arrest, was searched for the first time and contraband drugs and money were discovered. Accordingly, the warrantless search was too remote in time and place to be sustained as incidental to a lawful arrest ( Preston v. United States, 376 U.S. 364; People v. Lewis, 26 N.Y.2d 547).