| People v Thompson |
| 2014 NY Slip Op 04524 [118 AD3d 922] |
| June 18, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tausheba Thompson, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Jeanette Lifschitz, and Emil Bricker of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Knopf, J.), rendered June 15, 2010, convicting him of criminal possession of a weaponin the second degree, criminal possession of a weapon in the third degree, resisting arrest,and unlawful possession of marijuana, upon a jury verdict, and imposing sentence. Theappeal brings up for review so much of an order of the same court (Grosso, J.), datedFebruary 24, 2010, as denied, after a hearing, that branch of the defendant's omnibusmotion which was to suppress a gun recovered by the police.
Ordered that the judgment is modified, on the law, by vacating the convictions ofcriminal possession of a weapon in the second degree and criminal possession of aweapon in the third degree and vacating the sentences imposed thereon; as so modified,the judgment is affirmed, the determination in the order denying that branch of thedefendant's omnibus motion which was to suppress a gun recovered by the police isvacated, and the matter is remitted to the Supreme Court, Queens County, for furtherproceedings in accordance with People v LaFontaine (92 NY2d 470, 474-475[1998]).
On the night of August 12, 2008, a detective who was part of a narcotics operationobserved the defendant, who was standing on a street corner and wearing a backpack,remove a plastic bag containing what appeared to be marijuana from his pocket andengage in a hand-to-hand sale of marijuana to an unknown man. The detective stoppedthe defendant and requested the bag of marijuana in his pocket, and the defendantremoved a plastic bag containing marijuana from his pocket and handed it to thedetective. When the detective attempted to effect an arrest of the defendant, asking himto remove the backpack before placing him in handcuffs, the defendant attempted topunch the detective and fled. The detective chased the defendant and caught him bygrabbing and pulling on the backpack. In doing so, the detective felt an unidentifiable"hard object" in the backpack. The defendant elbowed the detective in the face, causingthe detective to release the backpack, and continued to flee, with the backpack still on hisback.
The detective again caught the defendant, who was then holding the backpack infront of him, and, as the two struggled over the backpack, it was released by both and lefton the sidewalk as the defendant fled again, followed by the detective. For the final time,the detective caught the defendant in the street and, after a struggle, subdued and arrestedhim. The arrest was made approximately 36 feet away from where the backpack was lefton the sidewalk. With the defendant [*2]secured by thedetective's partner, the detective returned to the backpack, opened it, and recovered aloaded semiautomatic handgun.
At a suppression hearing, the People argued that the warrantless search of thebackpack was lawful because the defendant had abandoned it. The Supreme Courtexplicitly rejected that theory, but determined that the search was justified under thesearch incident to a lawful arrest exception to the warrant requirement, and denied thatbranch of the defendant's omnibus motion which was to suppress the gun. Following ajury trial, the defendant was convicted of criminal possession of a weapon in the seconddegree, criminal possession of a weapon in the third degree, resisting arrest, and unlawfulpossession of marijuana.
The Supreme Court properly denied the defendant's motion to dismiss the indictmenton the ground that he was deprived of his statutory right to a speedy trial (seeCPL 30.30). In felony cases, the People are required to be ready for trial within sixmonths after the commencement of the criminal action (see CPL 30.30 [1] [a]).The defendant argued, inter alia, that the People were chargeable with a postreadinessdelay of 146 days during the suppression hearing while the arresting detective wasdeployed on military duty in Iraq. Contrary to the defendant's contention, the Peopledemonstrated that they exercised due diligence in attempting to make the witnessavailable and, thus, the period of time in question was excludable as an exceptionalcircumstance (see CPL 30.30 [3] [b]; People v Chardon, 83 AD3d 954, 955 [2011]; People vWilliams, 293 AD2d 557, 557-558 [2002]; People v Grady, 111 AD2d 932[1985]). The defendant's contention that the People's statement of readiness was illusorywhen made is unpreserved for appellate review (see CPL 470.05 [2]) and, in anyevent, without merit (see Peoplev Sawh, 58 AD3d 760, 761 [2009]; People v Rogers, 7 AD3d 737 [2004]; People vSantana, 233 AD2d 344, 345 [1996]).
However, the Supreme Court's suppression determination with respect to the gunwas erroneous. "On a motion to suppress physical evidence, the People bear the burdenof going forward to establish the legality of police conduct in the first instance" (People v Hernandez, 40 AD3d777, 778 [2007]; see People v Berrios, 28 NY2d 361, 367-368 [1971])."Under the State Constitution, an individual's right of privacy in his or her effectsdictates that a warrantless search incident to arrest be deemed unreasonable unlessjustified by the presence of exigent circumstances" (People v Gokey, 60 NY2d309, 312 [1983]; see People v Hernandez, 40 AD3d at 778). "When an individualsubjected to arrest has a privacy interest in property within his or her immediate controlor 'grabbable area', [the Court of Appeals] has identified two interests that may justify thewarrantless search of that property incident to a lawful arrest: the safety of the public andthe arresting officer; and the protection of evidence from destruction or concealment"(People v Gokey, 60 NY2d at 312; see People v Hernandez, 40 AD3d at778).
Contrary to the Supreme Court's determination, the search of the backpack was notjustified as a search incident to a lawful arrest. The backpack was not within thedefendant's immediate control or "grabbable area" at the time he was arrested (seePeople v Johnson, 241 AD2d 527, 527-528 [1997]; People v Ruffin, 133AD2d 425, 427-428 [1987]; see also People v Hernandez, 40 AD3d at 779).Moreover, the People failed to present evidence establishing exigent circumstances at thetime of the arrest that would justify the search. The detective did not assert that hesearched the backpack out of concern for the safety of himself or the public, and thecircumstances did not support a reasonable belief that the backpack contained a weapon(see People v Gokey, 60 NY2d at 313; People v Warner, 94 AD3d 916, 917 [2012]; People vHernandez, 40 AD3d at 779; People v Green, 258 AD2d 531, 532-533[1999]; cf. People v Smith, 59 NY2d 454, 458 [1983]). Likewise, the detectivedid not assert that he searched the backpack to protect against the destruction ofevidence, and the facts do not support such an assertion.
As an alternative ground for upholding the suppression ruling, the People argue thatthe search was justified because the detective had probable cause to believe that thebackpack contained evidence related to the drug sale. However, since the People did notrely on that theory at the suppression hearing, and the hearing court did not address thetheory, the People may not raise it for the first time on appeal (see People v Dodt,61 NY2d 408, 416 [1984]). The People also argue, as they did in the Supreme Court, thatthe search of the backpack was lawful because the defendant abandoned it. Because theSupreme Court decided the issue of abandonment in the defendant's favor, this Court isprecluded from reviewing that issue on the defendant's appeal (see CPL [*3]470.15 [1]; People v Ingram, 18 NY3d 948, 949 [2012]; People v Concepcion, 17NY3d 192, 196 [2011]; People v LaFontaine, 92 NY2d 470, 474 [1998]).Under the circumstances presented here, where we lack statutory authority to review anissue resolved in the appellant's favor at a suppression hearing, the Court of Appeals hasinstructed that the required remedy is to "reverse the denial of suppression and remit thecase to [the] Supreme Court for further proceedings" (People v LaFontaine, 92NY2d at 474; see People v Ingram, 18 NY3d at 949; People vConcepcion, 17 NY3d at 201). Accordingly, we vacate the defendant's convictionsof criminal possession of a weapon in the second degree and criminal possession of aweapon in the third degree and the sentences imposed thereon, vacate the determinationin the order denying that branch of the defendant's omnibus motion which was tosuppress the gun, and remit the matter to the Supreme Court, Queens County, for furtherproceedings in accordance with People v LaFontaine (92 NY2d at 474-475).Since there is no reasonable possibility that the evidence supporting the potentiallytainted weapon possession counts had a spillover effect on the convictions of resistingarrest and unlawful possession of marijuana, "granting suppression—if this is thedecision reached by the trial court on remittal—would be harmless with respect to[the] defendant's conviction for these other crimes," and, thus, the convictions for thesecrimes may stand (People v Concepcion, 17 NY3d at 196). Mastro, J.P., Lott,Austin and Roman, JJ., concur.