| People v Diaz |
| 2013 NY Slip Op 03937 [107 AD3d 401] |
| June 4, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Noel Diaz, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Richard J. Ramsay of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Darcel D. Clark, J.), rendered July 9,2010, convicting defendant, after a jury trial, of burglary in the third degree, possessionof burglar's tools (four counts), and criminal mischief in the fourth degree, andsentencing him, as a second felony offender, to an aggregate term of three to six years,unanimously reversed, on the law, the judgment vacated, the burglar's tools counts of theindictment dismissed, and the matter remanded for a new trial on the burglary andcriminal mischief charges.
The search of defendant's backpack following his arrest was unlawful because hewas handcuffed at the time of the search and it was no longer in his control (seePeople v De Santis, 46 NY2d 82, 89 [1978], cert denied 443 US 912[1979]). The contents of the backpack, which included a pair of pliers and unusedgarbage bags, should have been suppressed because even where a container is not in theexclusive control of the police, exigency justifying its search incident to arrest is notestablished in the absence of "some reasonable basis for the belief that the contents ofthose containers might pose a danger to the arresting officers or when there is legitimateconcern for the preservation of evidence which might reasonably be thought to residewithin the containers" (People v Rosado, 214 AD2d 375, 376 [1st Dept 1995],lv denied 86 NY2d 740 [1995]).
Here, the People did not meet their burden of establishing a reasonable basis for sucha belief. The officer who appeared at the suppression hearing did not testify about anyconcern regarding the presence of a weapon, or any other exigency. While suchtestimony is not required, exigency is not demonstrated unless it is supported bycircumstances giving rise to an objectively reasonable suspicion (see People v Bowden, 87AD3d 402, 405 [1st Dept 2011], appeal dismissed 18 NY3d 980 [2012]). Inthis case, there were no indications that defendant might be armed, that he posed anythreat of violence, or that the backpack contained any evidence. Because the burglar'stools charges are based on the evidence obtained by means of the unlawful search of thebackpack, those counts of the indictment must be dismissed. Moreover, the prejudice thataccrued to defendant from the admission of the unlawfully obtained evidence requiresthat he be retried on the burglary and criminal mischief charges.
We reject defendant's argument that the evidence established only an attempt tocommit [*2]burglary in the third degree, not thecompleted offense of burglary in the third degree. The police arrested defendant as heemerged from a hollow space over a store's entrance, under an awning. Before theincident for which defendant was arrested, the space had been enclosed, bounded on theoutside by a metal plate and on the inside by the store's interior wall. The hollow spacebetween the metal plate and the wall was large enough to accommodate a human being.The police saw defendant reach the area over the store entrance by climbing atop atelephone kiosk beside the doorframe. The metal plate covering the space had been"pried down," affording access to the hollow space within. The day after the arrest, thestore manager discovered that a hole had been chiseled in the store's interior wall behindthe hollow space where defendant had been the night before.
The enclosed hollow space over the store's entrance, between the metal plate and thestore's interior wall, plainly was a part of the building. The space was closed to the publicby virtue of the metal plate that covered it on the outside (cf. People v Sanchez,209 AD2d 265, 266 [1st Dept 1994], lv denied 85 NY2d 866 [1995] [theevidence was insufficient to support a burglary conviction where the unlocked vestibulewhere the defendant was arrested was not "closed to the public, and neither the ownernor the residents of this building took steps to restrict access to the vestibule, or toinstruct the defendant that he was not allowed in this area" (citation omitted)]). Anyspace physically closed off from public access constitutes a "building" within themeaning of Penal Law § 140.00 (2) (see People v King, 61 NY2d 550, 552[1984] ["the recessed entry area of a store abutting the sidewalk, enclosed by displaywindows, a door, a roof and a security gate at the sidewalk line may be deemed part of a'building' under the Penal Law"]). To prove the commission of a completed burglary, thePeople were required to show only that "[defendant] or any part of his body intrude[d]within the building" (id.). Such an intrusion was unquestionably demonstratedhere, as the evidence showed that defendant intruded his entire body into the hollowspace over the store's entrance. The metal plate covering the space had been pried back,and the jury was entitled to infer that defendant had twisted back the plate to gain accessto the space within.
For purposes of determining whether the evidence supports defendant's burglaryconviction, it is of no moment that, despite the hole he chiseled in the store's interiorwall, he apparently did not succeed in intruding beyond that wall into the main room ofthe store. "Where a building consists of two or more units separately secured or occupied,each unit shall be deemed both a separate building in itself and part of the main building"(Penal Law § 140.00 [2]). Thus, the evidence was sufficient to support a findingthat defendant completed the crime of [*3]burglary in thethird degree when he unlawfully entered the hollow space between the metal plate andthe store's interior wall, knowing that such entry was unlawful, with the intent to commita crime while within that space (see Penal Law § 140.20).Concur—Gonzalez, P.J., Friedman, Moskowitz, DeGrasse, Freedman, JJ.