The People of the State of New York, Respondent, v. Ivory Butler, Appellant

The People of the State of New York, Respondent, v Ivory Butler, Appellant. [MAJORITY] Judgment, Supreme Court, New York County (Harold J. Rothwax, J., at hearing and jury trial), convicting defendant of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of imprisonment of 5 to 10 years, unanimously affirmed. Upon a review of the record of the suppression hearing, we agree with the hearing court’s conclusion that defendant abandoned the bag in which the police discovered 40 vials of crack. By first attempting to conceal the small paper bag once he made eye contact with the uniformed police officers, and then discarding it by throwing it to the ground behind him and attempting to distance himself from it by walking away, defendant clearly evinced an intent to abandon the property (People v Boodle, 47 NY2d 398, 402, cert denied 444 US 969; People v Diaz, 180 AD2d 415), rather than to temporarily deposit it (People v Campbell, 160 AD2d 363, affd 76 NY2d 921) or deliberately secrete it from the police (People v Kelly, 172 AD2d 458, affd 79 NY2d 899). Moreover, since the recovery of the drugs was not a consequence of the momentary detention or seizure of defendant, but was wholly independent thereof, suppression would not be warranted even if the seizure was unreasonable (People v Milaski, 62 NY2d 147, 156; see also, People v Rogers, 52 NY2d 527, 532-533, cert denied 454 US 898, reh denied 459 US 898). Concur — Sullivan, J. P., Milonas, Ross, Asch and Kassal, JJ.