| People v Warner |
| 2012 NY Slip Op 02716 [94 AD3d 916] |
| April 10, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v LyieshaWarner, Respondent. |
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Mahler & Harris, P.C., Kew Gardens, N.Y. (Stephen R. Mahler of counsel), forrespondent.
Appeal by the People from an order of the Supreme Court, Queens County (Paynter, J.),dated March 23, 2010, which granted that branch of the defendant's motion which was for leaveto reargue that branch of her omnibus motion which was to suppress physical evidence, whichhad been denied in a prior order of the same court dated February 16, 2009, and, uponreargument, in effect, vacated the determination in the prior order, and thereupon granted thatbranch of the omnibus motion which was to suppress physical evidence.
Ordered that the order dated March 23, 2010, is affirmed.
Two police officers stopped the defendant and her companion after seeing them go through asubway turnstile at the same time following a single swipe of a MetroCard. The police officersasked the defendant and her companion for identification, and the defendant producedidentification from the purse she was holding. After checking the identifications, the policelearned that there was an outstanding warrant for the defendant. They placed her under arrestbecause of the outstanding warrant. As the defendant was being arrested, the police officersasked her to put her purse on the floor so that she could be handcuffed, and the defendantcomplied. The police officers then searched the defendant's purse and recovered a loaded gun anda steak knife.
In an order dated February 16, 2009, the Supreme Court, inter alia, denied that branch of thedefendant's omnibus motion which was to suppress physical evidence. In an order dated March23, 2010, the Supreme Court granted that branch of the defendant's motion which was for leaveto reargue and, upon reargument, in effect, vacated the determination in the prior order, andthereupon granted that branch of the omnibus motion which was to suppress physical evidence.
The Supreme Court properly granted leave to reargue, and upon reargument, properly grantedthat branch of the defendant's motion which was to suppress physical evidence. "On a motion tosuppress physical evidence, the People bear the burden of going forward to establish the legalityof police conduct in the first instance" (People v Hernandez, 40 AD3d 777, 778 [2007]). "Under [*2]the State Constitution, an individual's right of privacy in his or hereffects dictates that a warrantless search incident to arrest be deemed unreasonable unlessjustified by the presence of exigent circumstances" (People v Gokey, 60 NY2d 309, 312[1983]; see People v Hernandez, 40 AD3d at 778-779). "When an individual subjected toarrest has a privacy interest in property within his or her immediate control or 'grabbable area,'[the Court of Appeals] has identified two interests that may justify the warrantless search of thatproperty incident to a lawful arrest: the safety of the public and the arresting officer; and theprotection of evidence from destruction or concealment" (People v Gokey, 60 NY2d at312; see People v Hernandez, 40 AD3d at 779).
The People failed to establish that the search of the defendant's purse was justified to ensurethe safety of the public or of the arresting officers, or that the search was necessary to prevent thedefendant from concealing or destroying evidence. The People do not contend that the search wasnecessary to prevent the destruction of evidence. Further, there was nothing to suggest thepresence of a weapon, and the arresting officer never asserted that she acted out of concern forher safety or the safety of the public (see People v Hernandez, 40 AD3d at 778; cf.People v Smith, 59 NY2d 454, 455-459 [1983]). Moreover, the defendant was handcuffedbefore the police searched her purse, and the purse was no longer in her control (see People v Chisolm, 7 AD3d728, 729 [2004]).
The People's remaining contentions are unpreserved for appellate review. Angiolillo, J.P.,Dickerson, Lott and Miller, JJ., concur.