People v Basono

2014 NY Slip Op 08263 [122 AD3d 553]

November 25, 2014

Appellate Division, First Department

As corrected through Wednesday, December 31, 2014

[*1]

The People of the State of New York,Respondent, v Jose Basono, Appellant.

Steven Banks, The Legal Aid Society, New York (Jonathan Garelick of counsel), forappellant.

Cyrus R. Vance, Jr., District Attorney, New York (Allen J. Vickey of counsel), forrespondent.

Judgment, Supreme Court, New York County (Robert H. Straus, J.H.O., atsuppression hearing; Robert M. Stolz, J., at suppression decision; Daniel P. Conviser, J.,at jury trial and sentencing), rendered August 9, 2011, convicting defendant of attemptedcriminal possession of a weapon in the second degree, and sentencing him to a term of21/2 years, unanimously modified, on the law, to the extent of vacating thesentence and remanding for resentencing.

The court properly denied defendant's suppression motion. An officer observeddefendant and a group of others congregating with white foam cups and open bottles intheir hands or nearby. Although the officer could not see the labels on the bottles, he wasable to recognize them as liquor bottles. As the police approached, defendant and othersattempted to cover the cups with their hands and kick away the bottles, and defendantfled. This pattern of behavior lacked any reasonable innocent explanation, and itprovided reasonable cause to believe that defendant possessed an open containercontaining alcohol with the intent to consume it in public, in violation of the OpenContainer Law (Administrative Code of City of NY § 10-125 [b]).Accordingly, the police properly pursued defendant (see People v Canty, 55 AD3d 330 [1st Dept 2008], lvdenied 11 NY3d 896 [2008]; People v Bothwell, 261 AD2d 232, 234-235[1st Dept 1999], lv denied sub nom People v Rothwell, 93 NY2d 1026 [1999];Matter of Johnnie A., 253 AD2d 578 [1st Dept 1998]) and lawfully recovered theweapon he discarded during the chase.

Although it is apparent from the record of the sentencing proceeding that the courtdid not believe that defendant was entitled to youthful offender treatment, it did not makethe requisite [*2]explicit determination on the record atsentencing (see People vRudolph, 21 NY3d 497 [2013]; People v Flores, 116 AD3d 644 [1st Dept 2014]; People v Smith, 113 AD3d453, 454 [1st Dept 2014]). Concur—Friedman, J.P., Renwick, Moskowitz,Richter and Manzanet-Daniels, JJ.