| N.Y. App. Div. | Dec 7, 1992
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Colabella, J.), rendered August 30, 1990, convicting her of murder in the second degree, grand larceny in the third degree, criminal possession of stolen property in the third degree, and criminal possession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The defendant contends that the hearing court erred when it declined to suppress the homicide victim’s antique engagement ring, ruling that it would have been inevitably discovered in the course of normal police procedure notwithstanding a prior illegally obtained statement.
The inevitable discovery exception to the exclusionary rule requires the People to establish "a very high degree of probability that the evidence in question would have been obtained independently of the tainted source” (People v Payton, 45 NY2d 300, 313, revd 445 U.S. 573" court="SCOTUS" date_filed="1980-04-15" href="https://app.midpage.ai/document/payton-v-new-york-110235?utm_source=webapp" opinion_id="110235">445 US 573, on remand 51 NY2d 169; People v Fitzpatrick, 32 NY2d 499, 506, cert denied 414 U.S. 1033" court="SCOTUS" date_filed="1973-11-12" href="https://app.midpage.ai/document/lee-v-texas-8988031?utm_source=webapp" opinion_id="8988031">414 US 1033, 1050; People v Stith, 69 NY2d 313, 318; People v Knapp, 52 NY2d 689, 697-698; People v Ruffin, 133 AD2d 425, 429; People v Buffardi, 92 AD2d 899, 901). "[TJhe inevitable discovery exception is based on the perception that in certain circumstances the interest of society is better served by having relevant and material evidence admitted in criminal cases than by deterring police misconduct through the exclusion of evidence unlawfully acquired” (People v Stith, supra, at 318; see also, Nix v Williams, 467 U.S. 431" court="SCOTUS" date_filed="1984-06-11" href="https://app.midpage.ai/document/nix-v-williams-111204?utm_source=webapp" opinion_id="111204">467 US 431, 442-443). The exception does not apply to "the very evidence obtained in the illegal search”, i.e., primary evidence, but only to secondary evidence, i.e., "evidence obtained indirectly as a result of leads or
We agree with the hearing court that the ring in question was admissible under the inevitable discovery exception to the exclusionary rule. The evidence adduced at the suppression hearing established that normal police procedure — including a well established system of checks on local establishments which bought and sold silver and gold items — would have inevitably led to the ring’s discovery, notwithstanding the prior illegality (see, People v Fitzpatrick, supra, at 506).
The defendant’s remaining contention is unpreserved for appellate review (CPL 470.05 [2]). Thompson, J. P., Balletta, Rosenblatt and Eiber, JJ., concur.