People v. Concepcion
893 N.Y.2d 283
N.Y. App. Div.
2010
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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v REYNALDO CONCEPCION, Appellant.

Supreme Court, Appellate Division, New York

893 N.Y.S.2d 283

After a suppression hearing, the Supreme Court concluded that the People failed to establish that the defendant consented to a search of his vehicle, from which the police seized a quantity of cocaine, but that the cocaine would have been inevitably discovered during an inventory search. However, as the People correctly concede, the inevitable discovery doctrine may not be applied to primary evidence, that is, the very cocaine recovered from the defendant‘s vehicle (see ; ; ). Nevertheless, contrary to the Supreme Court‘s conclusion, the People carried their “heavy burden” of establishing the voluntariness of the defendant‘s consent to search his vehicle (see ). Considering the totality of the circumstances, while the defendant was in custody and handcuffed to a bar in an interview room, he had not resisted when brought into police custody, had freely given oral and written statements after being afforded Miranda warnings (see ), and was specifically informed that he had the right to refuse to consent to the search (see ). Although the defendant signed a written consent form that had not been completed to indicate, for example, the property to be searched, he had been advised that the police were seeking permission to search his van. Accordingly, on this alternative basis (cf. ), the defendant was not entitled to the suppression of the cocaine recovered from his vehicle.

The defendant was afforded meaningful representation (see ).

The defendant‘s remaining contentions are unpreserved for appellate review, and we decline to review them in the exercise of our interest of justice jurisdiction.

Santucci, J.P., Dickerson, Eng and Chambers, JJ., concur.