Appeal from judgment of Oneida County Court, Buckley, J.—criminal possession of controlled substance, second degree.
How later courts described this case
- Appeal from judgment of Oneida County Court, Buckley, J.—criminal possession of controlled substance, second degree.
Written by the judges who cited it.
The opinion
Pine, J. (dissenting).
We respectfully dissent and vote to affirm. The only witness at the suppression hearing was the State Police Officer who stopped defendant. The suppression court found that the officer asked defendant, "Would he mind if I took a look in the car,” and that defendant responded, "No, go ahead.” The court, applying the criteria of People v Gonzalez ( 39 NY2d 122 ), found that defendant understood the request, voluntarily and intelligently waived his right to refuse it, and consented to the search. It further found that defendant conversed with the officer and was cooperative, that the atmosphere did not appear strained, and that defendant was not in custody. The record supports those findings.
*325 The majority finds that, on this record, consent to "look” in the car does not amount to consent to "search” it by removing the rear seat, and further finds that any consent was involuntary. No distinction between looking and searching was drawn at the hearing, however. While the officer initially testified on direct examination that he asked to look in the car, on cross-examination he was asked without objection, "After you asked Mr. Guzman if he would mind permitting you to search his vehicle, you testified that he had said that yes, that would be okay?” The officer responded, "That’s right.”
We find no basis in this record to reject the suppression court’s finding that defendant voluntarily consented to the search of his car.
Lawton and Davis, JJ., concur with Green, J.; Boomer, J. R, and Pine, J., dissent and vote to affirm in an opinion by Pine, J.
Judgment reversed on the law and facts, and indictment dismissed.