| People v Sanders |
| 2014 NY Slip Op 05454 [119 AD3d 878] |
| July 23, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Oscar Sanders, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Rahshanda Sibley of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, and William H. Branigan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kron, J.), rendered October 5, 2012, convicting him of criminal possession of a weaponin the second degree and criminal possession of a weapon in the third degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after ahearing, of that branch of the defendant's omnibus motion which was to suppressphysical evidence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly denied thatbranch of his omnibus motion which was to suppress his clothing. Since the defendant'sclothing was lying on the floor of a hospital room in a clear plastic bag, the clothing wasopenly visible (see People vGrant, 94 AD3d 1139, 1140 [2012]). Moreover, the police had probable causeto seize the defendant's clothing as evidence of a crime of which they believed thedefendant had been a victim (see id. at 1139-1140; People v Quinones,247 AD2d 216 [1998]; People v Lewis, 243 AD2d 256 [1997]; People v Chandler, 18 Misc 3d1145[A], 2008 NY Slip Op 50445[U] [Sup Ct, Queens County 2008]).
The defendant further argues that his conviction must be vacated because the trialcourt conducted a Sandoval hearing (see People v Sandoval, 34 NY2d371 [1974]) in his absence. The defendant failed to rebut the presumption of regularitythat attaches to official court proceedings by coming forward with substantial evidencedemonstrating that the Sandoval hearing was conducted in his absence (seePeople v Frank, 295 AD2d 535 [2002]; People v Cody, 260 AD2d 718[1999]; People v Firrira, 258 AD2d 666 [1999]; People v Robinson, 191AD2d 523 [1993]). The record demonstrates that the court discussed the defendant'scriminal history with the defendant, specifically stating that the defendant had a total offour prior felony convictions and nine misdemeanors, which the defendant did notdispute. The court's subsequent Sandoval ruling precluded inquiry into anyunderlying facts of these convictions. Therefore, even crediting the defendant'scontention that he was absent from the pretrial Sandoval hearing, the court'sruling regarding the defendant's prior convictions precluded inquiry into the underlyingfacts of any of the convictions. Therefore, the defendant's presence at the hearing wouldhave been superfluous, and reversal of the judgment of conviction on that basis isunwarranted (see People v Michalek, 194 AD2d 568, 568-569 [1993],mod 82 NY2d 906 [1993]; see also People v Dokes, 79 NY2d 656, 661[1992]). Eng, P.J., Leventhal, Lott and Roman, JJ., concur.