The People of the State of New York, Respondent, v. Robert K. Jones, Appellant

The People of the State of New York, Respondent, v Robert K. Jones, Appellant. [645 NYS2d 575] [MAJORITY — Casey, J.] Casey, J. Appeals (1) from a judgment of the County Court of Albany County (Doyle, J.), rendered November 30,1992, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the first degree and criminal impersonation in the second degree, and (2) by permission, from an order of said court, entered January 8, 1993, which denied defendant’s motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crime of criminal possession of a controlled substance in the first degree, without a hearing. Defendant was indicted for criminal possession of a controlled substance in the first degree (count one) and criminal impersonation in the second degree (count two). In respect to the first count of the indictment, defendant was jointly charged with codefendant Porter F. Banks (see, People v Banks, 85 NY2d 558, cert denied — US —, 116 S Ct 187). The reversal by the Court of Appeals in People v Banks (supra) mandates dismissal of the first count of defendant’s indictment under similar reasoning. As to the second count against defendant, we hold otherwise. The count stems independently from the continued involuntary detention which invalidated Banks’ conviction. It is based on defendant’s production of a nonpicture New York driver’s license issued to "Thomas Cooper” and defendant’s response that he was, indeed, "Thomas Cooper” when asked for identification after a State Trooper had stopped the vehicle that defendant was driving, in which Banks was a passenger. We consider defendant’s conduct in this regard as a "wholly independent affirmative act unaffected by the taint of defendant’s illegal [detention]” (People v Glover, 215 AD2d 900, 903). Thus, defendant’s conviction of the second count was lawfully obtained and should be affirmed. Cardona, P. J., Mercure, White and Peters, JJ., concur. Ordered that the judgment is modified, on the law, by reversing so much thereof as convicted defendant of the crime of criminal possession of a controlled substance in the first degree, and, as so modified, the judgment of conviction should be affirmed. Ordered that the appeal from the order is dismissed, as academic.