| People v Jimenez |
| 2013 NY Slip Op 06087 [109 AD3d 764] |
| September 26, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Emilio Jimenez, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), forrespondent.
Judgment, Supreme Court, New York County (Robert M. Stolz, J., at suppressionhearing; Marcy L. Kahn, J., at jury trial and sentencing), rendered November 18, 2011,convicting defendant of two counts of criminal possession of a controlled substance inthe third degree, and sentencing him, as a second felony drug offender, to concurrentterms of four years, unanimously affirmed. The matter is remitted to Supreme Court,New York County, for further proceedings pursuant to CPL 460.50 (5).
The court properly denied defendant's suppression motion. Defendant did notpreserve his contention that the search of his backpack was not properly conducted as asearch incident to arrest. Defendant made completely different arguments, and gave noindication that he was challenging the search of his backpack under the principlesexpressed in People v Gokey (60 NY2d 309 [1983]). Although the Peopleelicited some testimony relevant to a Gokey issue, and the hearing court madesome reference to such an issue, the court did not "expressly decide[ ]" the issue "inresponse to a protest by a party" (CPL 470.05 [2]; see People v Colon, 46 AD3d 260, 263 [2007]). Inparticular, while defendant now claims that the record is insufficiently developed withrespect to his proximity to the backpack at the time of the search, he never alerted thehearing court to any such deficiency at the time it could have been remedied (seePeople v Martin, 50 NY2d 1029, 1031 [1980]). Accordingly, we find that defendantdid not preserve his present claims, and we decline to review them in the interest ofjustice.
As an alternative holding, we also reject them on the merits. The hearing evidencesupports inferences that the arrest and search were contemporaneous, that defendant wasnot handcuffed at the time of the search, and that the backpack was in defendant'sgrabbable area while not being in the exclusive control of the police (see People vSmith, 59 NY2d 454 [1983]; People v Wylie, 244 AD2d 247 [1997], lvdenied 91 NY2d 946 [1998]). At the time of the search, the officer had a legitimateconcern that defendant could gain access to some type of weapon, or could destroyevidence. Concur—Sweeny, J.P., DeGrasse, Manzanet-Daniels and Clark, JJ.