PEOPLE v. GOMEZ

Attorney(s) appearing for the Case

Robert M. Morgenthau, District Attorney, New York City (Jung Park and Mark Dwyer of counsel), for appellant. Officer Vettell properly conducted an inventory search of Victor Gomez's car, which began at the scene and continued at the precinct. (People v Johnson, 1 N.Y.3d 252; People v Jackson, 279 A.D.2d 357; People v Figueroa, 6 A.D.3d 720; Illinois v Lafayette, 462 U.S. 640; People v Galak, 80 N.Y.2d 715; Colorado v Bertine, 479 U.S. 367; Florida v Wells, 495 U.S. 1; People v Dickens, 218 A.D.2d 584, 88 N.Y.2d 1031; United States v Thompson, 29 F.3d 62; United States v Skillern, 947 F.2d 1268, 503 U.S. 949.)

DLA Piper LLP (US), New York City (Christopher C. Land of counsel), and Legal Aid Society (Steven Banks, David Crow and Andrew Fine of counsel) for respondent. I. The People of the State of New York's appeal should be dismissed because the Appellate Division's determination to reverse based on the failure to demonstrate that a valid inventory search was conducted was grounded on a mixed question of law and fact. (People v McCready, 68 N.Y.2d 981; People v Harrison, 57 N.Y.2d 470; People v Hallman, 92 N.Y.2d 840; People v Esquilin, 91 N.Y.2d 902; People v Galak, 80 N.Y.2d 715; People v Johnson, 1 N.Y.3d 252; People v Hartman, 294 A.D.2d 446, 100 N.Y.2d 568; People v Montilla, 268 A.D.2d 270, 95 N.Y.2d 830; People v Reddick, 265 A.D.2d 855, 95 N.Y.2d 822; People v Powell, 92 N.Y.2d 886.) II. The Appellate Division properly determined that a warrantless search of a vehicle is not sustainable as an inventory search if the procedures of an inventory search are not described, there is no testimony that an inventory of all items was taken, and if the only "inventory" taken is incriminating evidence. (People v Galak, 80 N.Y.2d 715; Colorado v Bertine, 479 U.S. 367; Florida v Wells, 495 U.S. 1; South Dakota v Opperman, 428 U.S. 364; People v Johnson, 1 N.Y.3d 252; People v Gonzalez, 62 N.Y.2d 386; Illinois v Lafayette, 462 U.S. 640; People v Robinson, 97 N.Y.2d 341; People v Minto, 272 A.D.2d 558; People v Colon, 202 A.D.2d 708.)

Judges CIPARICK, GRAFFEO, READ, SMITH and PIGOTT concur; Chief Judge LIPPMAN taking no part.