| People v Rollins |
| 2015 NY Slip Op 01366 [125 AD3d 1540] |
| February 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMichael Rollins, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered March 15, 2013. The judgment convicted defendant, upon his plea ofguilty, of criminal possession of a weapon in the second degree and criminal possessionof a controlled substance in the seventh degree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Supreme Court, Erie County, for further proceedings in accordance with thefollowing memorandum: Defendant appeals from a judgment convicting him upon hisplea of guilty of criminal possession of a controlled substance in the seventh degree(Penal Law § 220.03) and criminal possession of a weapon in the seconddegree (§ 265.03 [3]). Defendant's sole contention on appeal is thatSupreme Court erred in refusing to suppress physical evidence seized by the police andstatements he made to them. The evidence at the suppression hearing established that, onMarch 21, 2012, City of Buffalo police officers responded to a report of gambling by agroup of men in the road near 58 Wick Street. As officers approached the group, oneofficer observed defendant drop some dice on the ground and walk away from the groupand onto a nearby porch. The other men remained standing near some money and openalcohol containers. The observing officer ordered defendant off the porch, and placedhim under arrest for possession of a gambling device (§ 225.30 [a] [2]) anddisorderly conduct (§ 240.20 [5]). During a search of defendant's person,the officer discovered a loaded gun in defendant's jeans pocket, and defendant told theofficer that he had been "[s]hooting dice for drinks." A second officer searcheddefendant and discovered crack cocaine in his shirt pocket. Defendant later told officersthat he had obtained the gun from his cousin and thought it was "fake." The courtdetermined that the officer had probable cause to arrest defendant for "gambling" andtherefore refused to suppress the gun, the cocaine and defendant's statement. That waserror.
A police officer may arrest a person without a warrant where the officer has probablecause to believe that such person has committed or is presently committing an offense(see CPL 140.10; see also People v Maldonado, 86 NY2d 631, 635[1995]; People v Hicks, 68 NY2d 234, 238 [1986]; People v Bigelow, 66NY2d 417, 423 [1985]). However, where an officer lacks probable cause to arrest theperson, any evidence obtained as a result thereof must be suppressed (see People vJohnson, 66 NY2d 398, 407-408 [1985]; People v Ayers, 85 AD3d 1583, 1584-1585 [2011], lvdenied 18 NY3d 922 [2012]).
A person commits the crime of possession of a gambling device "when, withknowledge of the character thereof, he . . . possesses . . . [a]gambling device, believing that the same is to be used in the advancement of unlawfulgambling activity" (Penal Law § 225.30 [a] [2]). A person "[a]dvance[s]gambling activity" when he, "acting other than as a player, . . . engages inconduct which materially aids any form of gambling activity" (§ 225.00[4]). Thus, "a person who engages in any form of gambling solely as a contestant orbettor," i.e., a player, is excluded from criminal culpability (§ 225.00 [3]; see Matter of Victor M., 9NY3d 84, 87 [2007]).
[*2] Here, therewas no evidence before the suppression court that defendant was anything more than acontestant or player in a game of dice (see Penal Law§§ 225.00, 225.30 [a] [2]; Victor M., 9 NY3d at 87). Theobserving officer did not see defendant holding money, exchanging money with the othermen in the group, or even rolling the dice (cf. People v Wilder, 38 AD3d 263, 263 [2007], lvdenied 8 NY3d 951 [2007]; Matter of Curtis H., 216 AD2d 173, 174 [1995]).Therefore, contrary to the determination of the suppression court, the officer did not have"knowledge of facts and circumstances 'sufficient to support a reasonablebelief' " that defendant was using the dice in the advancement of a gamblingactivity (Maldonado, 86 NY2d at 635; see Penal Law§§ 225.00 [3], [4]; 225.30 [a] [2]).
As an alternative ground for affirmance, the People contend that the observingofficer had probable cause to arrest defendant for loitering for the purpose of gambling(Penal Law § 240.35 [2]). "It is well settled than an appellate court may notuphold a police action on a theory not argued before the suppression court" (People vLloyd, 167 AD2d 856, 856 [1990]; see People v Dodt, 61 NY2d 408,415-416 [1984]). Here, the People argued before the suppression court that the officerhad probable cause to arrest defendant for possession of a gambling device, disorderlyconduct, and possession of an open container of alcohol on a public street. Thus, thePeople's loitering contention is not properly before us (see Dodt, 61 NY2d at415-416; Lloyd, 167 AD2d at 856-857).
We note, however, that the suppression court failed to rule on the People'scontentions concerning disorderly conduct and possession of an open container ofalcohol, despite testimony at the suppression hearing supporting those theories of arrest.We therefore hold the case, reserve decision, and remit the matter to Supreme Court torule on those issues "based upon the evidence presented at the suppression hearing" (People v Jones, 39 AD3d1169, 1172 [2007]; see CPL 470.15 [1]; People v LaFontaine, 92NY2d 470, 474-475 [1998], rearg denied 93 NY2d 849 [1999]).Present—Scudder, P.J., Smith, Carni, Lindley and Sconiers, JJ.