SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1225 

KA 02-00049 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND SCUDDER, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

JAMES KENDRICK, DEFENDANT-APPELLANT.

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF

COUNSEL), FOR DEFENDANT-APPELLANT.

JAMES KENDRICK, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Monroe County

(Kenneth R. Fisher, J.), rendered February 1, 2001. The appeal was

held by this Court by order entered May 8, 2015, decision was reserved

and the matter was remitted to Supreme Court, Monroe County, for

further proceedings (128 AD3d 1482). The proceedings were held and

completed.

It is hereby ORDERED that the judgment so appealed from is

unanimously reversed on the law, the plea is vacated, that part of the

motion seeking to suppress physical evidence from the vehicle is

granted, and the matter is remitted to Supreme Court, Monroe County,

for further proceedings on the indictment. 

Memorandum: Defendant appeals from a judgment convicting him,

upon his plea of guilty, of criminal possession of a controlled

substance in the second degree (Penal Law § 220.18 [1]). When this

appeal was previously before us, we concluded that, as the People

correctly conceded, Supreme Court (Fisher, J.) erred in determining

that defendant lacked standing to challenge the legality of the police

search of a vehicle in which a large quantity of cocaine was found in

the back seat (People v Kendrick, 128 AD3d 1482, 1482-1483). We

further concluded that the error was not harmless because there was a

reasonable possibility that the error contributed to defendant’s

decision to plead guilty. Upon remittal, the court (Winslow, J.)

conducted a suppression hearing, following which it refused to

suppress the cocaine, ruling that the People proved that the driver of

the vehicle voluntarily consented to the search of the vehicle, and

that the warrantless search was therefore lawful. We now reverse. 

“It is the People’s burden to establish the voluntariness of
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KA 02-00049 

defendant’s consent, and that burden is not easily carried, for a

consent to search is not voluntary unless ‘it is a true act of the

will, an unequivocal product of an essentially free and unconstrained

choice. Voluntariness is incompatible with official coercion, actual

or implicit, overt or subtle’ ” (People v Packer, 49 AD3d 184, 187,

affd 10 NY3d 915, quoting People v Gonzalez, 39 NY2d 122, 128). “An

important, although not dispositive, factor in determining the

voluntariness of an apparent consent is whether the consenter is in

custody or under arrest, and the circumstances surrounding the custody

or arrest” (Gonzalez, 39 NY2d at 128). 

Here, defendant was a front seat passenger in the vehicle in

which the cocaine was found by the police. The only other occupant

was the driver, who owned the vehicle and consented to the police

search. At the suppression hearing, the sole witness called by the

People was the police officer who obtained consent to search from the

driver. That officer acknowledged, however, that she was not involved

in the stop of the vehicle and did not know the basis for the stop. 

She was unaware whether the driver committed any traffic infractions

and did not know why the driver was taken into custody. According to

the officer, she came into contact with the driver in an interview

room at the police station at approximately 8:00 p.m., which was more

than 41⁄2 hours after the vehicle was stopped. The officer did not know

who, if anyone, had questioned the driver before she entered the

interview room; did not know whether anyone had advised him of his

Miranda rights; did not know whether he had been handcuffed prior to

her arrival; did not know whether he had been given any food or drink;

and did not know whether he had been allowed to make any telephone

calls. The officer merely testified that the driver spontaneously

told her during the interview that there was cocaine in the back seat

of his vehicle, and that he then voluntarily consented to the search

by signing a consent to search form. 

We conclude that, “[b]ecause the People failed to present

evidence at the suppression hearing establishing the legality of the

police conduct, [the driver’s] purported consent to the search of his

vehicle was involuntary[,] and all evidence seized from the vehicle as

a result of that consent should have been suppressed” (People v Purdy,

106 AD3d 1521, 1523; see Packer, 49 AD3d at 187-189). We therefore

reverse the judgment, vacate the plea, grant defendant’s omnibus

motion insofar as it sought suppression of the cocaine found in the

vehicle, and remit the matter to Supreme Court for further proceedings

on the indictment. 

In light of our determination, we do not address the contention

raised by defendant in his pro se supplemental brief. 

Entered: February 3, 2017 Frances E. Cafarell

Clerk of the Court