| People v Davis |
| 2010 NY Slip Op 00169 [69 AD3d 647] |
| January 5, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v William Davis, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and John F. McGoldrick of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.),rendered December 11, 2006, convicting him of criminal possession of a weapon in the seconddegree, criminal possession of a weapon in the third degree, and unlawful possession ofmarijuana, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing, of that branch of the defendant's omnibus motion which was to suppressphysical evidence.
Ordered that the judgment is reversed, on the law, that branch of the defendant's omnibusmotion which was to suppress physical evidence is granted, and a new trial is ordered.
On May 29, 2004, two police officers sitting in an unmarked police car observed thedefendant sell what appeared to be marijuana. The defendant was sitting on the front stoop of hisresidence, inside a fenced yard, during this transaction. After the transaction was completed, heleft his knapsack on the stoop and walked to the curb to talk to the driver of a parked vehicle.The police apprehended the defendant while he was at the curb, and then walked over to hisknapsack and searched it. They found a loaded gun and marijuana.
Following a suppression hearing, the gun and marijuana were admitted into evidence. Thedefendant was convicted of criminal possession of a weapon in the second degree, criminalpossession of a weapon in the third degree, and unlawful possession of marijuana, and sentencedas a persistent felony offender. On appeal, the defendant contends that the court erred in denyingthat branch of his omnibus motion which was to suppress the gun and marijuana and insentencing him as a persistent felony offender.
The People contend that the defendant's argument that he did not abandon his knapsack isnot preserved for appellate review. The People are correct that the defendant did not raise thisspecific argument in support of that branch of his omnibus motion which was to suppressphysical evidence. While the motion alone would not have been sufficient to preserve the issuefor our review, when coupled with the Supreme Court's specific finding that the knapsack wasabandoned, the issue now on appeal was "expressly decided by that court" and, thus, may bereviewed (People v Prado, 4 NY3d725, 726 [2004]; see CPL 470.05; People v Feingold, 7 NY3d 288, 290 [2006]; People v Marshall, 51 AD3d 821[2008]; People v Berry, [*2]49 AD3d 888, 889 [2008];People v Sellers, 168 AD2d 583 [1990]).
The People failed to prove that the defendant intended to abandon his knapsack, which wasopened by the police without his consent, searched, and found to contain a gun and marijuana(see People v Howard, 50 NY2d 583, 593 [1980], cert denied 449 US 1023[1980]). The defendant did not discard or otherwise rid himself of the knapsack. Rather, hesimply put it down on the stoop of his residence, inside a fenced yard, and walked to the curb totalk with the driver of a vehicle parked there. This conduct was not indicative of an intention toabandon the bag (see People v Howard, 50 NY2d at 593; People v Carter, 133AD2d 230, 231 [1987]). Contrary to the People's contention, the defendant did not relinquish hisexpectation of privacy in the contents of his knapsack.
The People's contention on appeal that exigent circumstances existed for the search of thedefendant's knapsack was waived in the suppression court and, thus, may not now be raised(see People v Dodt, 61 NY2d 408, 416 [1984]; People v Posada, 36 AD3d 721 [2007]).
In light of our determination, we need not reach the issue regarding the defendant's sentence.Mastro, J.P., Santucci, Belen and Chambers, JJ., concur.