| People v Alston |
| 2014 NY Slip Op 08344 [122 AD3d 934] |
| November 26, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York, Respondent, v Kenny Alston, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M.Castellano, Johnnette Traill, William H. Branigan, and Evan J. Gotlob of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Griffin, J.), rendered December 6, 2011, convicting him of robbery in the first degree(12 counts), robbery in the second degree (6 counts), and criminal possession of stolenproperty in the fourth degree, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial (Paynter, J.), after a hearing (Demakos, J.H.O.), of thatbranch of the defendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is reversed, on the law and the facts, that branch of thedefendant's omnibus motion which was to suppress physical evidence is granted, and anew trial is ordered.
The following evidence was adduced at the defendant's suppression hearing. On themorning of February 19, 2010, a police officer (hereinafter the officer) and her partnerencountered the defendant, who had been stabbed in the back, in the trauma room atJamaica Hospital (hereinafter the hospital). According to the officer, the defendant wasconnected to an intravenous line and "a lot of blood [was] coming out of the wound."The officer believed the defendant to be a crime victim.
The defendant told the officer that his name was Kenny Alston. When the officerasked the defendant for an identification card, he either told her that hospital personnelhad taken it or that it was at the hospital's security office. The officer then went to thehospital's security office and requested and received a sealed manila envelope containingthe defendant's belongings. The officer unsealed the envelope, removed and opened thedefendant's wallet, and retrieved two driver licenses; one belonging to the defendant, andone belonging to another person (hereinafter M.L.). After asking the defendant aboutM.L.'s driver license, the officer gave both licenses to an officer from a differentprecinct, and she and her partner left the hospital.
That same morning, other police officers learned that M.L. and five other individualshad been victims of a robbery at the Jewish Community Center in Howard Beach, andthat one of the perpetrators sustained a stab wound to the back during the course of therobbery. The defendant, [*2]who was never identified byM.L., became a person of interest due to his possession of M.L.'s driver license. Heultimately was arrested and charged with, inter alia, multiple counts of robbery.
The hearing court denied that branch of the defendant's omnibus motion which wasto suppress the physical evidence recovered from the manila envelope, consisting ofM.L.'s driver license and over $3,000 in cash. Following a jury trial, the defendant wasconvicted of 12 counts of robbery in the first degree, 6 counts of robbery in the seconddegree, and criminal possession of stolen property in the fourth degree. On appeal, thedefendant contends that the branch of the defendant's omnibus motion which was tosuppress the physical evidence should be granted and a new trial ordered.
"On a motion by a defendant to suppress physical evidence, the People have theburden of going forward to show the legality of the police conduct in the first instance"(People v Spann, 82 AD3d1013, 1014 [2011] [internal quotation marks omitted]). The People failed to meettheir burden in this instance.
Initially, we note that the defendant had a legitimate expectation of privacy in hispersonal belongings, notwithstanding the fact that he was a hospital patient and hisbelongings were being temporarily stored in the hospital's security office (see Peoplev Ramirez-Portoreal, 88 NY2d 99, 108 [1996]; People v Watt, 118 Misc 2d930 [Sup Ct, NY County 1983]; see also People v Cook, 85 NY2d 928, 931[1995]). In addition, the fact that the officer perceived the defendant to be a victim ratherthan a suspect did not strip the defendant of Fourth Amendment protection (seeBerger v New York, 388 US 41, 50 [1967]; see also United States v Drayton,536 US 194, 201 [2002]).
The People contend that suppression is unwarranted because the defendant consentedto the officer's search of his belongings. The record does not support this contention. Asan initial matter, the officer's ambiguous testimony leaves open the possibility that thedefendant merely said that hospital personnel had taken his belongings. In any event,even if the defendant said that his driver license was at the security office, his failure toobject when the officer left the trauma room thereafter cannot be deemed to constitutetacit consent, as the officer was no longer in his line of sight and there was no reason forhim to assume that she was heading to the security office (cf. People v Nelson,292 AD2d 397, 398 [2002]; People v Gonzalez, 222 AD2d 453 [1995];People v Davis, 120 AD2d 606, 607 [1986]).
Furthermore, even assuming that the defendant authorized the officer's retrieval ofthe manila envelope, the officer's subsequent actions far exceeded the scope of theconsent given (see People vHall, 35 AD3d 1171, 1172 [2006]; People v Bryant, 245 AD2d 1010,1013 [1997]; see also People vGomez, 5 NY3d 416, 420 [2005]). There is no evidence that the defendantauthorized her to break the envelope's seal, take out his wallet, and remove material frominside his wallet.
The People's contention that the defendant's consent was not necessary becauseexigent circumstances existed was never advanced before the hearing court and,therefore, may not be considered here (see People v Johnson, 64 NY2d 617, 619n 2 [1984]; People vThompson, 118 AD3d 922, 924 [2014]; People v Hall, 35 AD3d at1172).
Accordingly, that branch of the defendant's omnibus motion which was to suppressthe physical evidence should have been granted. We further conclude that, under thecircumstances here, this error was not harmless beyond a reasonable doubt (see People v Harper, 100AD3d 772, 774 [2012]). Skelos, J.P., Dickerson, Chambers and Sgroi, JJ.,concur.