The People, Respondent,v.Gregory Lee, Appellant.BriefN.Y.August 30, 2017CYRUS R. VANCE, JR. DISTRICT ATTORNEY Hon. John P. Asiello DISTRICT ATTORNEY COUNTY OF NEW YORK ONE HOGAN PLACE New York, N.Y. 10013 (212) 335-9000 June 5, 2017 Chief Clerk and Legal Counsel to the Court New York Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Dear Mr. Asiello: Re: People v. Gregory Lee APL-2017-00016 Section 500.11 Submission By permission of the Honorable Ellen Gesmer, Associate Justice of the Appellate Division, First Department, granted January 12, 2017, defendant appeals from an October 27, 2016 order of that court. By that order, the Appellate Division affirmed a judgment of the Supreme Court, New York County (Melissa C. Jackson, J. at suppression hearing; Jill Konviser, J. at plea and sentencing), rendered August 7, 2013, convicting defendant, upon his guilty plea, of six counts of Forgery in the Second Degree, six counts of Identity Theft in the First Degree, two counts of Criminal Possession of a Forged Instrument in the Second Degree, eight counts of Criminal Possession of Stolen Property in the Fourth Degree, and seven counts of Identity Theft in the Third Degree, and sentencing him, as a second felony offender, to an aggregate prison term of three to six years. By this Court's letter, dated February 15, 2017, this appeal has been calendared for summary consideration pursuant to Section 500.11 of the Court's Rules of Practice, and the People have no objection to this type of consideration of defendant's appeal. We submit this letter in response to defendant's Section 500.11letter dated March 31,2017 ("DL''). ARGUMENT As set forth below, because the record evidence amply supported the Appellate Division's decision upholding the legality of both defendant's arrest and the search of DISTRICT ATTORNEY COUNTY OF NEW YORK 2 June 5, 2017 his car, that. decision is beyond the review of this Court. Even if this Court reaches the merits of defendant's claims, it should affum the Appellate Division's order and uphold the findings below that the police lawfully arrested defendant for possessing marijuana and then conducted a lawful inventory search of defendant's car in compliance with established inventory search procedure. THE SUPPRESSION HEARING1 The People's Case For the past six years, Sergeant JIMMY FREYRE had been assigned to a Transit police unit where he regularly conducted investigations into crimes that took place on the subways. Indeed, "about a hundred or so" of Freyre's investigations involved "pickpockets and stolen credit cards and the like" (Freyre: H4-5). · In June of 2012, Freyre reviewed a surveillance video that was shot on June 10th in the subway station at 42nd Street and Eighth Avenue, and showed two people remove a wallet from the victim. When Freyre compared the faces of the two assailants in the video to mug shot photographs contained in "a book of known grand larceny, pickpocket recidivists," he identified defendant as one of the thieves. Indeed, the video contained "a clear shot of" defendant Defendant's accomplice, who had worn a hat during the larceny, was later identified as Walter Young. Freyre contacted defendant's parole officer and arranged to be present at defendant's next visit 1bere, Freyre observed defendant, accompanied by Young, meet with the officer (Freyre: HS-6, H13- 14). On October 25, 2012, defendant was arrested with Young for committing an attempted grand larceny in the 14th Street and Union Square subway station. Freyre was summoned to "debrief' the two men, but they refused to speak. A MetroCard was · recovered from defendant and further investigation revealed that it had been purchased with a stolen credit card. In addition, Freyre reviewed a surveillance video which showed defendant buying the MetroCard at a subway vending machine. Thereafter, 1 Parenthetical references preceded by "H," "D," "P," and "S" are to the minutes of the suppression hearing held before Justice Melissa C. Jackson on April25 and 26, 2013, the minutes of the decision announced at the May 31, 2013 proceeding conducted before Justice Jackson, the minutes of the July 11, 2013 plea proceeding before Justice Jill Konviser, and the minutes of the August 7, 2013 sentencing proceeding before Justice Konviser, respectively. DISTRICT ATTORNEY COUNTY OF NEW YORK 3 June 5, 2017 Freyre created a "wanted poster" seeking defendant's arrest for "criminal possession of stolen property" (Freyre: H7-8, H15-17, H26-27). On November 13, 2012, at about 5:00 or 6:00p.m., Freyre and his partner were on plainclothes patrol in the subway station at 42nd Street and Seventh Avenue, when Freyre observed defendant and a black female-later identified as Deion Grinds-board a northbound train. The train was "very crowded," and only Freyre was able to board. He followed the pair off the train at 125th Street and Lenox Avenue, and observed them enter a Starbucks. From outside, Freyre saw defendant and Grinds "at the cash register attempting to purchase something." After they left, Freyre observed the pair walk to 123rd Street and Seventh Avenue, where they entered a white, four-door Yukon car with Louisiana license plates, and drove away (Freyre: HS-10, H17-21, H23-24, H31-33). Although Freyre believeH he had probable cause to arrest defendant for possession of stolen· property, he did not want to act "alone." Moreover, because of limited reception in the subways, he would not have been able to call for back-up. Later, Freyre created another wanted poster which: 1) identified defendant as a "pickpocket"; 2) indicated that defendant had been observed that day in the subway system "casing for possible victims"; 3) described the car that defendant had driven away; 4) noted that defendant had several arrests for grand larceny and pickpocketing; and 5) stated that defendant was currently wanted by a Transit robbery squad for criminal possession of stolen property. Photographs of defendant and his pedigree information were also provided. At the bottom of the poster, it was inscribed that there was "PROBABLE CAUSE TO ARREST" defendant (Freyre: H12, H21-22, H24-27, H31, H33-35, H46; Defense Exhibit A [wanted poster]). - The next day, Freyre went back to the Starbucks and reviewed a surveillance video from the previous day which displayed defendant and Grinds at the cash register. He also spoke to the cashier who had manned that register. She "absolutely" remembered defendant, recalling that he had attempted to make a purchase using a credit card imprinted with the photograph of another person, and she therefore "declined" to process the transaction (Freyre: H9-10, H23) .. Two days later, on November 16th, Freyre returned to 123rd Street and Seventh Avenue, and again observed the white Yukon parked at the location. At approximately 6:30 to 7:00 p.m., Freyre was joined by Police Officer GABRIEL DONES of the Transit Manhattan Task Force. The two plain-clothed officers sat in an unmarked vehicle and, from across the street, conducted surveillance. of the Yukon. Freyre said that they were looking for a man who was "wanted" and a "known pickpocket" About DISTRICT ATTORNEY COUNTY OF NEW YORK 4 June 5, 2017 45 minutes to an hour later, the officers saw defendant and Grinds enter the Yukon and drive off. The two officers followed as defendant first stopped outside a deli, went inside and came back out, reentered the car, and then drove to 145th Street. Defendant bought gas at a station, then drove south on the FDR Drive, and exited at 53rd Street. He then drove to 55th Street between Lexington and Third Avenues, where he parked the Yukon. Defendant and Grinds then walked into a restaurant located on the corner of 53rd Street and Third Avenue (Freyre: Hl0-11, H35-43, H47; Dones: H95-99, H132- 136, H142-148). Meanwhile, the two police officers were outside, watching defendant and Grinds through a window. At some point, Freyre contacted Lieutenant Callaghan and Sergeant ALFRED RICCI and asked that they come to his location. When Ricci arrived, Freyre indicated that defendant was "wanted" for "criminal possession of a stolen property" based on his possession of a MetroCard that had been purchased with a stolen credit card. Freyre and Ricci told the manager of the restaurant that when defendant paid for the bill, they wanted to know whether he used a credit card or cash; later, they were told that defendant paid with cash. Devising a plan to arrest defendant, the officers decided that Ricci and Dones would wait until defendant and Grinds returned to the Yukon (Freyre: H12, H44-49; Ricci: H55-57, H69-70; Dones: H97-99, H137, H156-157). When the pair left the restaurant, Freyre notified his colleagues. Freyre and Callaghan followed defendant and Grinds part of the way and then "back[edJ off" as the · pair approached the car. After defendant unlocked the car doors, Grinds got into the front passenger seat and closed the door. Defendant opened the driver's side door and, in "sort of an aggressive tone," asked Ricci, who was standing near the front of the car, if he could "help, Ricci (Freyre: H13, H48-49; Ricci: H57-59, H69-72; Dones: H99-100, H148, H157). Ricci moved from the front of the car to the open driver's side of the car, where he stood next to defendant. At this point, he was "hit'' by the "overwhelming" and "very, very strong" smell of marijuana that had "already been burned" coming from inside the car. Ricci had smelled the "distinct" odor of marijuana "too many times to count" and he had made "dozens" of marijuana possession arrests (Ricci: H59, H71, H73-74, H76-77, H92-94). Meanwhile, after Grinds had entered the car, Dones walked from across the street to the driver's side of defendant's car. As he stood behind defendant, by the open driver's side door, Dones also smelled the "strong odor" of marijuana emanating from the car. Dones had smelled marijuana "[mJany times" and he had previously arrested DISTRICT ATTORNEY COUNTY OF NEW YORK 5 June 5, 2017 people for smoking marijuana. The odor "smell[ed] like marijuana that had been burning previously" (Dones: H100-101, H149-151, H157-158). When Ricci asked defendant about the smell of marijuana, defendant replied, "I don't smell anything.'' Still standing outside, Ricci and Dones observed a marijuana cigarette, "in plain view," in an ashtray area on the center console, between the two front seats of the car. It appeared to be "partially smoked" and "partially burned," but not lit. When Ricci reached into the car, picked it up, and asked to whom it belonged, each of the pair replied, "it's not mine." A field test of the cigarette proved positive for marijuana, and it was later vouchered. At about 11:00 p.m., defendant was arrested for possession of marijuana, as well as a crime for which he was "wanted already," his possession of the MetroCard that he had purchased with a stolen credit card (Ricci: H59-61, H74-81, H91; Dones: H101-105, H147, H151-154). When defendant's wallet was searched pursuant to the arrest, the officers found two envelopes of heroin. Inside Grinds' handbag, which was on the front passenger seat of the car, the officers found "a stack" of approximately 20 or 30 gift and credit cards. Through the windows of the car, Ricci saw "a large quantity of garments, garment bags, [and] shopping bags," including "a lot of designer named brands," inside the car. Dones noticed that the car was "full" of "a lot of shopping bags," some of which were imprinted with the name "Macy's" (Ricci: H61, HS0-83, H88-89; Dones: H102-104, H121, H155). Ricci drove defendant's car to the police command, arriving at about 11:10 or 11:15 p.m., and then "vouchered" it. As Ricci 'was driving the car, the smell of marijuana was "so strong" that it made his throat "burn" and he had to keep the car windows open during the entire time. Ricci supervised while Dones, the arresting officer, conducted an "inventory search" of defendant's car.2 The search was performed "to safeguard all the property in the vehicle," particularly "anything of value," and "to protect the officer[s] and the [police] department from any liability if the property does disappear.'' This was done in accordance with the relevant section of the NYPD Patrol Guide, regarding inventory searches of automobiles and other property, which stated that the purpose of an inventory search is "[t]o protect property, ensure against unwarranted claims of theft, and protect the uniformed members of the service and others against dangerous instrumentalities." A copy of this Patrol Guide section was 2 When asked to describe "what type of a search" the police had conducted in this case, Ricci testified that "it was a search for evidence ... because we found the drugs in the car," and that it was also an "inventory search" (Ricci: H62-63). DISTRICT ATTORNEY COUNTY OF NEW YORK 6 June 5, 2017 admitted in evidence at the hearing (Ricci: H61-64, H79, H86-87; Dones: H104-106, H119, H122; People's Exhibit 1 (Patrol Guide 218-13]). During the inventory search, Dones removed "everything" from defendant's car, and at the direction of Ricci, he later vouchered all of the items removed as "investigatory evidence."3 As Dones was taking the items out of the car, Officer Marcello was present and was "contemporaneously" writing out an "inventory list" of the items being removed, including the location from which each item had been recovered, e.g., the trunk, the middle row, the third row, and the front. A copy of the two-page inventory list, which was written on a notepad paper, was admitted in evidence at the hearing. To itemize more specifically the property that had been removed from the car, Dones documented all of the items on nine pages of property clerk invoices that he filled out when he vouchered all of the items. These property clerk invoices were admitted in evidence at the hearing.4 Many of the items recovered from the car, which included jackets and coats, looked "newly purchased" and "of value," and they were in shopping bags with brand names such as Coach, Cole Haan, and Ferragamo. No items were either left inside the vehicle or given back to defendant (Ricci: H62, H65; Dones: H105-118; People's Exhibits 2, 3A, 3B, 3C [handwritten inventory list and property clerk invoices]). The Hearing Court's Decision From the bench, Justice Jackson found that Freyre, Ricci and Dones were "seasoned" police officers whose demeanors on the stand were "candid, calm, and forthcoming." Finding that they were credible witnesses, the court made detailed findings of fact that comported with the three officers' hearing testimony (D3-6). In her conclusions of law, Justice Jackson held that, when the police approached defendant by his car on November 16, 2012, they "clearly" had "probable cause to 3 When asked about the different types of categories of vouchering," Ricci replied, ''You have safekeeping, you have investigatory, you have arrest evidence . . . to detennine [the) true owner." Except for nail clippers and used lotions, Dones vouchered everything he removed from defendant's car as "investigatory" (Ricci: H64; Dones: H112). 4 Marcello's handwritten inventory list indicated, after three other numbers were apparently crossed out, that five cell phones were recovered from the front center console of defendant's car. 'The property clerk invoice admitted in evidence as People's Exhibit 3C indicated that seven cell phones were vouchered (Dones: H114-118). DISTRICT ATTORNEY COUNTY OF NEW YORK 7 June 5, 2017 arrest" defendant in connection with several crimes: his use of a stolen credit card to purchase a MetroCard he possessed on October 25th; his attempt to make a purchase in a Starbucks store using another person's credit card on November 13th; and his unlawful possession of marijuana discovered when Ricci and Dones smelled "the strong smell of marijuana" emanating from defendant's car, as well as observed a marijuana cigarette "in plain view" on the front center console, as they were about to arrest defendant on November 16th, in connection with the other crimes (D7). The court held that, after defendant's lawful arrest, "the search of [his] car at the precinct was lawful under two theories." First, the court found that the police were performing their lawful duty in arresting defendant, seizing his car, and transporting it to the precinct, where they conducted a "protocol inventory search to safeguard items found in the vehicle," and properly vouchered all the items recovered from the car as "investigatory evidence." Second, the court held that the search of the car was justified under "the automobile exception to the warrant requirement" In that regard, the court noted, "It is well settled law [that] officers are permitted to search a vehicle without a warrant where evidence of contraband is observed in plain view. A valid arrest for a crime authorizes the warrantless search of a vehicle and any closed containers in the passenger compartment of the car." Here, where the police detected the strong odor of marijuana emanating from defendant's car, as well as saw the marijuana in plain view on the car's front center console, the police were permitted to search the entire car, including any closed containers, under the automobile exception to the warrant requirement. The court also found that, "given the circumstances of the arrest and defendant's known identity as a well[-]known pickpocket," a warrantless search of defendant's car was justified because there was "reasonable cause to believe" that the car might contain evidence related to "the crime of criminal possession of stolen property· and identity theft" for which defendant was being arrested and was subsequently indicted. Accordingly, the court denied defendant's suppression motion in its entirety, and found admissible all of the items recovered from defendant's car (D7-9). DISTRICT ATTORNEY COUNTY OF NEW YORK 8 June 5, 2017 THE APPELLATE DIVISION DECISION On appeal, the Appellate Division afftnned defendant's conviction. People v. Lee, 143 A.D.3d 626 (1st Dept. 2016).5 Initially, the court found that the evidence at the suppression hearing established that the police "had probable cause to arrest defendant for unlawful possession of marijuana," based on the testimony of two police witnesses that "there was a strong odor of marijuana emanating from defendant's car when defendant opened the car door," and both officers "observed a partially burned marijuana cigarette, in plain view, on the center console between the front seats of the car." Rejecting defendant's claim that the police testimony was incredible, particularly because the officers were already planning to arrest defendant for crimes involving possession of stolen property, the Appellate Division held that "[g]enerally, credibility determinations are left to the hearing court, and the findings of fact by the hearing court are entitled to great deference on appeal." In determining that there was "no reason to disturb the credibility finding of the hearing court," the Appellate Division found that it was "not implausible that the officers would find a partially burnt marijuana cigarette in defendant's car," and "the record contains no basis to conclude that the officers manufactured this testimony." Id. at 627. Next, the Appellate Division found that the "critical issue" was its finding that the officers' search of defendant's car, which was conducted at the police district headquarters after defendant's arrest, was a "legitimate inventory search." The Appellate Division concluded that this finding was based on the evidence established at the hearing, and that there was "nothing in the record that would support overturning that determination" by the hearing court. I d. at 627-628. The Appellate Division rejected defendant's claim that the "minor discrepancies" between the handwritten list of items removed from defendant's car and the property clerk invoices somehow "call[ed] into question the credibility of the officers who testified at the hearing." Moreover, the officers' decision to delay, until defendant went back to his car, arresting him for possession of stolen property and identity theft, b~sed on defendant's commission of previous crimes, was "not evidence that the arrest was merely a pretext to search the car." In that regard, the Appellate Division reiterated, when defendant returned to his car and opened the door, the officers smelled marijuana 5 As previously recounted, see page 1, supra, on July 11, 2013, before Justice Jill Konviser, defendant pled guilty to 29 counts in full satisfaction of the indictment against him, and on August 7, 2013, was sentenced, as a second felony offender, to an aggregate prison term of three to six years. DISTRICT ATTORNEY COUNTY OF NEW YORK 9 June 5, 2017 and noticed a marijuana cigarette in the car, which independently established probable cause to arrest defendant for unlawful possession of marijuana. Id. at 628-629. Furthermore, according to the Appellate Division, it was "important to note" that, because both defendant and his companion, Deion Grinds, were arrested, "no one was available, except the police, to take possession of (defendant's] car," rendering an inventory search essential. Moreover, not only was "a copy of the relevant patrol guide outlining the procedures for inventory searches" admitted into evidence, but it was adduced from the officers that "[e]verything was removed from the car, under the direction of a sergeant, and even items such as nail clippers were vouchered." Finally, "[a] contemporaneous list was made of the items that were removed, and the list was introduced in evidence at the hearing," and "[c]opies of property clerk invoices also were admitted in evidence at the hearing." Thus, the Appellate Division found, the evidence at the hearing established that "the officers did not exercise discretion in removing items from the car," and "the search was not a ruse to recover incriminating evidence." Id. at 627-629, 637. The Appellate Division pointed out that Dones, who conducted the search of defendant's car, "testified that it was 'an inventory search,' and that the purpose was 'to safeguard all the property in the vehicle." In addition, Ricci testified that· it was an inventory search, and that Dones "took anything of value out of the car." Although Ricci also referred to the search of the car as "a search for evidence," the court found that "the procedures that were followed were more consistent with an inventory search than anything else, and support the hearing court's conclusion in this case." On that note, the Appellate Division held, "An inventory search is not invalid merely because incriminating evidence is recovered so long as that was not the primary purpose of the search." Finally, since the Appellate Division had determined that a valid inventory search had been conducted here, the court did not decide whether the search was justified under any alternative theory, such as the automobile exception to the warrant requirement. Id. at 628-629. Justice Ellen Gesmer dissented. In relevant part, she found that the motion court's conclusion that the police conducted a valid inventory search of defendant's car was "inconsistent with both the police testimony that their motivation for the search was investigatory, and the documentary and testimonial evidence that the search did not comply with established procedure." Disagreeing with the credibility findings of the motion court, the judge instead opined that "the purpotted inventory search was 'a ruse for a general rummaging in order to discover incriminating evidence."' Id. at 629-630, 637 (citation omitted). DISTRICT ATTORNEY COUNTY OF NEW YORK 10 POINT THE RECORD SUPPORTS THE DETER1v1INATION BY THE LOWER COURTS THAT THE POLICE DID NOT VIOLATE DEFENDANT'S FOURTH .fu\![ENDMENT RIGHTS. June 5, 2017 On appeal before this Court, defendant maintains, as he did before the lower courts, that the police officers' inventory search of his car was unlawful because it was not conducted in accordance with established police procedure (DL: 15-18). Defendant also renews his claim that, even if the People satisfied their initial burden of showing that the police complied with standardized inventory search guidelines, they failed to show that the car search was "not a ruse for general rummaging in order to discover incriminating evidence" (DL: 18). Both lower courts determined that the evidence at the suppression hearing established that the inventory search of defendant's car was conducted pursuant to standard and reasonable police procedure, and was not a pretext to look for stolen property or other incriminating evidence. Since there is ample support in the record for those factual findings, this Court is bound by such findings. People v. Galak, 80 N.Y.2d 715,718 (1993). To begin, as the motion court properly found, and the Appellate Division correctly affirmed, the police had probable cause to arrest defendant for unlawful possession of marijuana. The credible testimony adduced from Ricci and Dones established that, when they stood by the open door to defendant's car, they both smelled a very strong odor of marijuana emanating from the vehicle. Specifically, Ricci testified that he was "hit" by the "overwhelming'' and "very, very strong'' smell of marijuana that had "already been burned" coming from inside the car. Dones testified that he also smelled the "strong odor" of marijuana that seemed like it "had been burning previously." Confirming their detection of the smell of burnt marijuana, both officers observed a partially burnt marijuana cigarette, in plain view, on the center console between the front seats of the car. As both courts below rightly concluded, those observations, if credited, unquestionably gave the police officers probable cause to arrest defendant for unlawfully possessing marijuana. As he did before the two lower courts, defendant once again suggests that the police testimony regarding his possession of marijuana was less than credible. In support of that claim, defendant argues that the officers were already planning to arrest defendant for what he again claims were "dubious" allegations that defendant, weeks earlier, had possessed a MetroCard that was bought with a stolen credit card, and three DISTRICT ATTORNEY COUNTY OF NEW YORK 11 June 5, 2017 days earlier, had attempted to use another person's credit card to make a purchase at Starbucks (DL: 1-3, 12 n.4, 13-14). However, as the Appellate Division rightly found, it is well-settled that credibility determinations are generally left to the hearing court, and the findings of fact by the hearing court are entitled to great deference on appeal. People v. Prochilo, 41 N.Y.2d 759, 761 (1977). In determining that there was "no reason to disturb the credibility findings" of the motion court in this case, the Appellate Division aptly determined that it was "not implausible that the officers would find a partially burnt marijuana cigarette in defendant's car," and "the record contains no basis to conclude that the officers manufactured this testimony." Since the evidence at the suppression hearing solidly supported the credibility and factual findings rendered by the motion court, and affirmed by the Appellate Division, regarding the credibility of the police officers, in particular as to whether they had probable cause to arrest defendant for unlawful possession of marijuana, both courts' determinations present a mixed question of law and fact, for which there is support in the record and which are therefore beyond further review by this Court. See People v. Joseph, 27 N.Y.3d 1009, 1010 (2016); see also People v. McRay, 51 N.Y.2d 594, 601 (1980).6 Next, as both lower courts correctly found, upon lawfully arresting defendant, the police were entitled to take possession of his car and transport it to the police district headquarters, where they conducted a proper inventory search. The applicable legal standards regarding inventory searches are not in dispute. Following the lawful arrest of the driver of an automobile that must be impounded, the police may conduct an 6 In any event, defendant's assertion that the police used the smell of marijuana as a "ruse," because the proof that defendant had committed prior larceny-related crimes was based on "dubious" allegations, is clearly belied by the record below. As previously described, the police had already done such a thorough investigation that they unquestionably could have arrested defendant for those other crimes. Thus, even if defendant was now in a procedural position to challenge the credibility of the officers' testimony at the hearing, the nefarious motive that he ascribes to them makes absolutely no sense. Moreover, since the Appellate Division found it unnecessary to reach the Fourth Amendment issues concerning the potential for defendant's arrest for the larceny-related crimes or the possibility of a search of defendant's car pursuant to the automobile exception, this Court cannot properly address these issues without first remitting the case for a determination by the Appellate Division. See People v. Valentin, 29 N.Y.3d 57 (2017). Furthermore, pursuant to Court Rule 500.11 (f), the People request that they be permitted to reserve the arguments, set forth in their Appellate Division brief, that the motion court, which did rule on these issues, correctly found no violation of defendant's rights with respect to either alternative justification for the actions of the police. DISTRICT ATTORNEY COUNTY OF NEW YORK 12 June 5, 2017 inventory search of the vehicle. People v. Padilla, 21 N.Y.3d 268, 272 (2013); People v. Johnson, 1 N.Y.3d 252, 255 (2003). The specific objectives for such a search are: to protect the owner's property; to protect the police against any claim of lost or stolen property; and to protect police personnel and others from dangerous instruments. Id. at 256; Galak, 80 N.Y.2d at 718. As such, the justification for an inventory search does not rest upon probable cause, but rather is determined by the "reasonableness" of the police procedures utilized. Illinois v. Lafayette, 462 U.S. 640, 643 (1983). An inventory search is reasonable where the police officers are guided by agency procedures which are "rationally designed" to meet the legitimate objectives of the search, and which "limit the discretion of the officer in the field." So long as the search is conducted according to a "single familiar standard," it is proper. Finally, when a hearing court determines that "[an] inventory search ... was conducted pursuant to a standard departmental procedure" and there is "support in the record for that factual finding," an appellate court should adhere to such a finding. Galak, 80 N.Y.2d at 716- 721. Here, both courts below concluded that the inventory search of defendant's car was properly conducted, and, because there is support in the record for that factual finding, this Court is bound by it. Id. at 718. At the outset, contrary to defendant's complaint (DL: 16), the Appellate Division correctly found that the police lawfully impounded defendant's car, since both defendant and his sole passenger were arrested, "and there was no one available, except the police, to take possession of the car." See People v. Brooks, 161 A.D.2d 655, 655 (2d Dept. 1990); Kamins, New York Search and Seizure § 5.05(6)(a). Certainly, too, where, as here, "no facts were brought to the [officers'] attention to show that impounding would be unnecessary," the police were "not required, as a matter of constitutional law, to raise the question" of whether an alternative to impoundment was available. People v. Walker, 20 N.Y.3d 122, 125 (2012). Since defendant was lawfully arrested for, at a minimum, unlawful possession of marijuana, and he neither objected nor suggested an alternative to impounding his car, which certainly could not have simply been left on the street, the officers made the reasonable decision to impound it. See People v. Wilson,. 22 A.D.3d 373,374 (1st Dept. 2005). The lower courts also properly determined that the police conducted a lawful inventory search of defendant's car. Ricci supervised as Dones conducted that search. Significantly, the People introduced into evidence a copy of the NYPD Patrol Guide section outlining the procedures for inventory searches. Specifically, Section 218-13 of the guide, entitled "Inventory Searches Of Automobiles And Other Property," stated that the purpose of an inventory search was "[t]o protect property, enslire against DISTRICT ATTORNEY COUNTY OF NEW YORK 13 June 5, 2017 unwarranted claims of theft, and protect the uniformed members of the service and others against dangerous instrumentalities." As both officers made clear, their search of defendant's car was conducted with exacdy those aims in mind. They testified that the inventory search was performed to "safeguard" defendant's possessions in his car while he was in custody, including "anything of value," and "to protect the officer[s] and the [police] department from any liability if the property does disappear." Thus, the officers' credible testimony, taken together with the relevant Patrol Guide section received in evidence, clearly showed that the police search of defendant's car was motivated by, and comported with, the legitimate objectives of a valid inventory search: preserving the property of defendant, protecting the police from any claim of lost or stolen property, and ensuring the safety of police personnel. Padilla, 21 N.Y.3d at 272-273. Moreover, contrary to de fen dan t' s assertions (D L: 17 -18), and as the lower courts appropriately recognized, the hearing evidence established that Dones and Marcello stricdy complied with the procedures set forth in the Patrol Guide inventory search guidelines. Section 218-13 of the guide states, in pertinent part, that the police should "[s]earch the interior of the vehicle thoroughly" and "[r]emove all valuables from the vehicle and voucher on a separate PROPERlY CLERI< INVOICE (PD521-141)" (People's Exhibit 1 [capitals in original]). As the Appellate Division correcdy found, that is precisely what the officers did in this case, notwithstanding defendant's claim to the contrary (DL: 17). Dones removed "everything'' from defendant's car, thus limiting the officer's exercise of discretion in conducting the search of the car. And, at the direction of Ricci, Dones vouchered all the items he recovered, including many valuable, designer- name and high-end merchandise, some of which looked newly-purchased and had prices on them. No items were either left inside the vehicle or given back to defendant Significandy, as Dones took items out of the car, Marcello "contemporaneously" wrote out an "inventory list" of the items that were removed and from where in the car they were found. A copy of the two-page inventory list written by Marcello was admitted in evidence as People's Exhibit 2. To itemize more specifically the property that was taken out of the car, Dones documented each of the total of 66 pieces of property in nine pages of property clerk invoices that he filled out when he vouchered all of the items. These detailed property clerk invoices, which Dones filled out on form ''PD521-141" as referenced in Section 218-13 of the Patrol Guide, were admitted in evidence at the DISTRICT ATTORNEY COUNTY OF NEW YORK 14 June 5, 2017 hearing as People's Exhibits 3A, 3B, and 3C.7 Thus, the record makes plain that the police meticulously followed proper procedure in conducting the inventory search of defendant's car.8 Importantly, the handwritten list that was created contemporaneously with the search of the car, that listed the items removed and their exact location, together with the nine pages of property clerk invoices itemizing in greater detail everything that was taken out, constituted the "hallmark" of an inventory search: "a meaningful inventory list" of the property that was recovered from defendant's car. Johnson, 1 N.Y.3d at 256. Notwithstanding Justice Gesmer's complaint, now echoed by defendant, that the handwritten list was "not completed on an official form" (DL: 17), the Appellate Division majority aptly determined that the fact that the handwritten list was not filled out on an "inventory" or other "official" form, "does not undermine the evidentiary value of the list, nor alter the conclusion that the procedures employed effectively limited the discretion of the officers conducting the search." Cf. People v. Gomez, 13 N.Y.3d 6, 11 (2009) ("the failure to use an inventory search form, while a technical defect, is not fatal to the establishment of valid inventory search as long as (1) the 7 For the first time, defendant complains about the People's failure to introduce the NYPD Patrol Guide section on "Invoicing Property," claiming that as a result, the People were unable to make a showing of an "established procedure clearly limiting the conduct of individual officers" (DL: 16). That complaint is both unpreserved and meridess. After all, the testimony adduced from Dones about his invoicing procedure here, as well as the detailed invoices he prepared and which were admitted in evidence before the hearing judge, sufficiendy addressed any such issue. 8 Defendant's contention that the police did not adhere to proper inventory search procedure appears to be based primarily on his complaint that the police removed not only "valuables" from his car, but also "used" personal items such as nail clippers and lotions, without creating "activity logs" for those non-valuable items, as allegedly required by the Patrol Guide (D: 17-18). However, Section 218-13 of that guide does not prohibit non-valuable items &om being removed from a searched car, nor does it mandate that all non-valuables be listed in an activity log. Rather, that section states, "Property oflitde value that is left inside the car e.g., old clothes, cassette tapes, and vehicle parts, should within reason, be listed in the uniformed members ACTIVITY LOG (PD112-145) and cross referenced to the invoice number covering any valuables removed" (People's Exhibit 1 [capitals in original]). Thus, it is apparent that an officer who conducts an inventory search of a car has some latitude in deciding what non-valuables should remain in a car, and whether to list in an activity log any non-valuables that are left inside. Here, since Dones removed the nail clippers and lotions from defendant's car- as he was entided to do pursuant to the Patrol Guide - he did not have to list them in an activity log. In any event, whether Dones removed such items and whether he recorded them in an activity log certainly had litde, if any, bearing on the validity of the inventory search he conducted in this case. Padilla, 21 N.Y.3d at 272-273. DISTRICT ATTORNEY COUNTY OF NEW YORK 15 June 5, 2017 search, in accordance with the 'standardized procedure,' is ·designed to produce an inventory and (2) the search results are fully recorded in a usable format''). To be sure, as defendant notes, the handwritten list states that five cell phones and a "Salvatore Feragamo [sic]" garment bag were removed from defendant's car, while the property clerk invoices list seven cell phones, but not such a garment bag, as having been vouchered (DL: 18). However, as the Appellate Division properly recognized, given the numerous items that were recovered from defendant's car, recorded on the handwritten inventory list, and itemized on the property clerk invoices, these "minor discrepancies" did "not call into question the credibility of the officers," and did not vitiate an otherwise valid inventory search. See Padilll!, 21 N.Y.3d at 272-273 (failure of officer to itemize property from the defendant's car that he gave to the defendant's sister did not render inventory search invalid); Walker, 20 N.Y3d at 126-127 (upholding inventory search despite several deficiencies in the description of items recovered). Here, as discussed, the police search of defendant's car was clearly designed to produce an inventory, and the handwritten inventory list together with the property clerk invoices of the contents of defendant's car, "fully recorded" the search results in a "usable format.'' Gomez, 13 N.Y.3d at 11. Thus, this Court should defer to the motion court's and the Appellate Division's determinations that the requirements for a valid inventory search were met in this case. Padilla, 21 N.Y.3d at 272.9 Finally, the Appellate Division majority properly rejected the claim raised by the dissent, and now echoed by defendant (DL: 18), that even if "the police complied with established procedure," the inventory search was "a ruse to recover incriminating evidence," and that the police possessed an "investigatory motive" when searching defendant's car, "thus removing their actions from the ambit of the inventory search doctrine." As a threshold matter, the Appellate Division's conclusions that the police search of defendant's car was not a ruse for general rummaging to discover incriminating evidence present a mixed question of law and fact, and are therefore 9 As did the dissenting Justice, defendant cites Galak, 80 N.Y.2d at 720-721, and argues that an inventory list created five hours after a search renders the list "of little use" and prevents a finding of a valid inventory search (DL: 18). However, as the majority correctly pointed out, in this case, by contrast, "the handwritten inventory list was made at the same time the items were removed" from defendant's car, and this procedure therefore "created a usable inventory." The majority also properly distinguished Galak on the grounds that, while the inventory list in that case was created five hours after the search, in defendant's case "the record contains no information about when the typewritten property clerk invoices were created as opposed to when they were printed." Lee, 143 A.D.3d at 629. DISTRICT ATTORNEY COUNTY OF NEW YORK 16 June 5, 2017 beyond the scope of this Court's power to review. People v. Vandover, 20 N.Y.3d 235, 239 (2012). In any event, the record below amply supports those conclusions. First, the Appellate Division was correct when it concluded that "the officers' decision to delay defendant's arrest until he had opened his car was not evidence that the arrest was merely a pretext to search the car." As that court noted, when defendant returned to his car and opened the door, the officers smelled marijuana and noticed a marijuana cigarette in the car. Because the police had probable cause to arrest defendant for unlawful possession of marijuana at that time, whatever subjectively motivated the police to follow defendant before he was lawfully arrested was irrelevant and could not be used as evidence that his arrest was merely a pretext for the officers to search the car for stolen property. See generally People v. Wright, 98 N.Y.2d 657,658-659 (2002). Furthermore, although defendant now alludes to testimony at the suppression hearing that he claims establishes an "investigatory motive on the part of the police" that "removes their actions from the ambit of the inventory search doctrine," the Appellate Division's factual conclusion to the contrary finds more than ample· support in the record below .. As the Appellate Division noted, Dones, who conducted the search of defendant's car, «testified that it was 'an inventory search,' and that the purpose was 'to safeguard all the property in the vehicle." In addition, Ricci testified that it was an inventory search, and that Dones· "took anything of value out of the car." Although Ricci also referred to it as "a search for evidence ... because we found drugs in the car," the Appellate Division reasonably found that "the procedures that were followed were more consistent with an inventory search than anything else, and support the hearing court's conclusion in this case." Moreover, it is clear that the officers' testimony that all of the items that were recovered from the car were vouchered as "investigatory evidence," and the notations on the property clerkinvoices in the "Property Category" headings and the ''Remarks" sections labeling the vouchered items as "investigatory," were merely police administrative category descriptions, for vouchering purposes, of the property recovered from defendant's car, and not "admissions" by the officers that they had searched the car for investigatory purposes, i.e., with the intention of uncovering incriminating evidence against defendant .. Of course, too, as the Appellate Division correctly found, "An inventory search is not invalid merely because incriminating evidence is recovered so long as that was not the primary purpose of the search." See Johnson, 1 N.Y.3d at 256. - - - - ·------------------------ DISTRICT ATTORNEY COUNTY OF NEW YORK 17 June 5, 2017 In sum, the Appellate Division's decision affirming the motion court's denial of defendant's motion to suppress the physical evidence recovered from his car is supported by the record, and thus beyond this Court's review. In any event, the police had probable cause to arrest defendant for possession of marijuana, and the evidence was recovered pursuant to a proper inventory search of defendant's car. CONCLUSION The order of the Appellate Division should be affirmed, for the reasons stated above.10 SUSAN GLINER GRACE VEE Assistant District Attorneys Of Counsel Respectfully submitted, CYRUS R. VANCE,JR. District Attorney New York County danyappeals@dany.nyc.gov BY: ~-J7 Grace Vee Assistant District Attorney (212) 335-9444 10 Pursuant to Court Rule 500.11 (m), the undersigned certifies that the word count for the body of this submission is 6985. The word processing system used to prepare this submission and to calculate the word count was Microsoft Word 2016. This submission is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 12 points in the footnotes. DISTRICT ATTORNEY COUNTY OF NEW YORK cc: Samuel J. Mendez, Esq. Office of the Appellate Defender 11 Park Place, Suite 1601 New York, New York 10007 18 June 5, 2017