| People v Miranda-Hernandez |
| 2013 NY Slip Op 03346 [106 AD3d 838] |
| May 8, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Benito Miranda-Hernandez,Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of Supreme Court, Queens County (Zayas,J.), rendered August 22, 2011, convicting him of criminal possession of a weapon in thesecond degree and criminal possession of a controlled substance in the third degree (twocounts), upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Grosso, J.), of that branch of the defendant's omnibus motionwhich was to suppress a gun and a quantity of cocaine recovered from a vehicle occupiedby the defendant, and money recovered from his wallet.
Ordered that the judgment is reversed, on the law, that branch of the defendant'somnibus motion which was to suppress the gun and the quantity of cocaine recoveredfrom the vehicle occupied by the defendant, and the money recovered from his wallet isgranted, the indictment is dismissed, and the matter is remitted to the Supreme Court,Queens County, for the purpose of entering an order in its discretion pursuant to CPL160.50.
At a suppression hearing, a New York City Police Department detective testified thatas of November 2009, he was deputized to work as a member of an ad hoc task force ofthe Federal Bureau of Investigation (hereinafter FBI). The detective testified that onNovember 11, 2009, an FBI special agent informed him that the defendant, who waswanted on a probation violation warrant issued in Virginia Beach, Virginia, could befound in a white Honda with a Virginia license plate starting with the letters XSX in thearea of Queens Boulevard near the 59th Street Bridge at about 5:30 p.m. Upon receivingthis information and a photograph of the defendant from the special agent, the detectivelooked up the reported probation violation warrant on E-Justice, a "program to look upraps and warrants." The program indicated that the defendant had a "warrant stating thatthey would extradite south of the Rockies to Virginia Beach." The detective printed outthe information displayed on his computer screen, and went to the location. When hearrived, the detective saw a white Honda with a Virginia license plate starting with theletters XSX parked at the side of a gas station, with a male and a female sitting inside.The detective testified that he approached the car, asked the defendant to exit the vehicle,and after confirming the defendant's identity, arrested the defendant "because of theviolation of the probation, the out-of-state warrant." The police subsequently discovereda gun and a quantity of cocaine in a bag that was inside of the car, and $850 [*2]in the defendant's wallet.
After the Supreme Court denied that branch of the defendant's omnibus motionwhich was to suppress the gun, the cocaine, and the money in the defendant's wallet, thedefendant was convicted, following a jury trial, of criminal possession of a weapon in thesecond degree and two counts of criminal possession of a controlled substance in thethird degree.
The Supreme Court should have granted that branch of the defendant's omnibusmotion which was to suppress the gun, cocaine, and money in the defendant's wallet. Thedetective had no authority to arrest the defendant based on his information that there wasan out-of-state violation of probation warrant, as the detective did not obtain a warrantfrom a local criminal court pursuant to CPL 570.32. While CPL 570.34 provides that apolice officer may also arrest a person in this state without a warrant "upon reasonableinformation that the accused stands charged in the courts of another state with a crimepunishable by death or imprisonment for a term exceeding one year" (CPL 570.34[emphasis added]), a violation of probation is not a "crime" (see Penal Law§ 10.00 [6]; CPL 1.20; Matter of Darvin M. v Jacobs, 69 NY2d 957, 959[1987]; see also Carchman v Nash, 473 US 716, 725 [1985]). The gun, cocaine,and money in the defendant's wallet should have been suppressed as fruit of the unlawfularrest (see Wong Sun v United States, 371 US 471, 488 [1963]; People vJennings, 54 NY2d 518, 522 [1981]). Without that evidence, there could not besufficient evidence to prove the defendant's guilt, and the indictment must therefore bedismissed (see People vCarmichael, 92 AD3d 687, 688 [2012]; People v Kevin W., 91 AD3d 676, 678 [2012]).
In light of our determination, we need not reach the defendant's remainingcontentions. Mastro, J.P., Hall, Lott and Sgroi, JJ., concur.