Opinion
1594
September 24, 2002.
Judgment, Supreme Court, New York County (John Cataldo, J.), rendered March 29, 2000, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the fourth and seventh degrees, and sentencing him, as a second felony offender, to concurrent terms of 4 to 8 years and 1 year, respectively, unanimously modified, on the law, to the extent of vacating the conviction for criminal possession of a controlled substance in the seventh degree and dismissing that count, and otherwise affirmed.
MEREDITH BOYLAN, for respondent.
LORCA MORELLO, for defendant-appellant.
Before: Nardelli, J.P., Saxe, Buckley, Ellerin, Marlow, JJ.
Defendant's suppression motion was properly denied. Drugs were recovered from defendant incident to a lawful arrest. Defendant committed a violation in the presence of police officers, who properly elected to make an arrest rather than issuing a summons because defendant carried no identification and stated that he was homeless. Defendant argues that the Equal Protection Clause requires the police, in making such a decision, to treat a defendant's residence in a homeless shelter the same as any other verifiable address. We need not decide that issue because there is no evidence that defendant ever informed the police that he lived in a shelter. The document that defendant showed to the police apparently related to free food and did not establish that he was a shelter resident at the time of his arrest.
As conceded by the People, defendant's conviction for criminal possession of a controlled substance in the seventh degree, a lesser included offense of fourth-degree possession, should be vacated.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.