NESMITH, CORNELLIUS L., PEOPLE v ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1273
KA 09-00951
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, LINDLEY, AND DEJOSEPH, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
CORNELLIUS L. NESMITH, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered April 30, 2009. The judgment
convicted defendant, upon his plea of guilty, of criminal possession
of a weapon in the second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a
guilty plea of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]), defendant contends that the police conducted
an illegal inventory search of the vehicle and thus that Supreme Court
erred in refusing to suppress the weapon found during that search. We
reject defendant’s contention. “Following a lawful arrest of the
driver of an automobile that must then be impounded, the police may
conduct an inventory search of the vehicle” pursuant to established
police policy (People v Johnson, 1 NY3d 252, 255). Here, the People
met their burden of establishing that the police followed the
procedure set forth in the applicable order of the Rochester Police
Department in conducting the inventory search (see People v Wilburn,
50 AD3d 1617, 1618, lv denied 11 NY3d 742; People v Cooper, 48 AD3d
1055, 1056, lv denied 10 NY3d 861). Also contrary to defendant’s
contention, the officers followed the standard procedure in the
applicable order in impounding the vehicle upon determining that there
was no one available who could legally drive it. We reject
defendant’s contention that the applicable order required the officers
to locate the registered owner of the vehicle. Contrary to
defendant’s further contention, the record establishes that the police
prepared a “meaningful inventory list” (Johnson, 1 NY3d at 256; see
Wilburn, 50 AD3d at 1618). We have considered defendant’s remaining
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KA 09-00951
contention and conclude that it is without merit.
Entered: January 2, 2015 Frances E. Cafarell
Clerk of the Court