| People v Alvarado |
| 2015 NY Slip Op 01955 [126 AD3d 803] |
| March 11, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Wilson Alvarado, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Casey Rose Denson and Alexis Ascher ofcounsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andAdam M. Koelsch of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Dowling, J.), rendered January 25, 2012, convicting him of criminal possession of aweapon in the second degree (two counts), upon a jury verdict, and imposing sentence.The appeal brings up for review the denial, after a hearing (Dwyer, J.), of that branch ofthe defendant's omnibus motion which was to suppress physical 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 physical evidence recoveredincident to his arrest. "On a motion to suppress physical evidence, the People bear theburden of going forward to establish the legality of police conduct in the first instance"(People v Hernandez, 40AD3d 777, 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 hereffects dictates 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). For "compellingreasons," including the safety of the officers or the public, "a search 'not significantlydivorced in time or place from the arrest' may be conducted even though the arrestedperson has been subdued and his closed container is within the exclusive control of thepolice" (People v Smith, 59 NY2d 454, 458 [1983], quoting People v DeSantis, 46 NY2d 82, 88 [1978]).
Here, the police officer who arrested the defendant testified that he was inplainclothes, responding in an unmarked vehicle to a radio report of a shooting at aprivate house, when he saw the defendant walking on a street approximately five blocksfrom the subject house. The officer, who had responded to the subject house between 5and 10 times in the past, knew the defendant, and knew that he lived at the subject house.He took his shield out, approached the defendant, and saw that the defendant wore abackpack, and had blood on his pants, his shirt, and his hands. Based on the radio reportof a shooting and the defendant's appearance, the officer had reason to believe that hewas faced with a dangerous situation warranting a nonarrest detention of the defendantand a search for weapons as a precautionary measure (see People v Allen, 73NY2d 378, 380 [1989]; Peoplev Crawford, 110 AD3d 916 [2013]). The officer took the backpack from thedefendant and put it on the hood of a nearby car, searched the defendant for weapons,and handcuffed the [*2]defendant approximately threefeet from the backpack. As soon as the defendant was handcuffed, he started crying andsaid that his brother was just shot and that the guns were in the "bag." At that point, theofficer had probable cause to arrest the defendant for criminal possession of a weapon(see People v Niles, 237 AD2d 537 [1997]).
The arresting officer properly searched the defendant's backpack incident to thelawful arrest. The People presented evidence establishing exigent circumstances at thetime of the arrest that would justify the search. The circumstances supported a reasonablebelief that the backpack contained a weapon (see People v Smith, 59 NY2d at458; People v Bowden, 87AD3d 402, 404-405 [2011]). The case of People v Jimenez (22 NY3d 717 [2014]), cited by thedefendant, is distinguishable from the instant case. In Jimenez, police officers,responding to a radio report of a burglary in an apartment building, searched thedefendant's handbag after arresting her for trespass. Among other things, there was noindication that the demeanor or actions of either the defendant in Jimenez or hercompanion was in any way threatening, no evidence that they matched the description ofthe suspects of the subject burglary, and no reasonable basis to suspect that the defendantor her companion had participated in the subject burglary or were in possession of aweapon (see People v Jimenez, 22 NY3d at 723).
The defendant's claim that he was deprived of a fair trial by prosecutorial misconductis unpreserved for appellate review, as he failed to object to some of the allegedlyimproper summation comments, and made only general objections as to others (seeCPL 470.05 [2]; People vWright, 90 AD3d 679 [2011]). Moreover, the defendant's motion for a mistrial,made after the completion of summations, was untimely and failed to preserve hiscontentions for appellate review (see People v Malave, 7 AD3d 542 [2004]; People vMorris, 148 AD2d 552 [1989]; People v Bruen, 136 AD2d 648, 649 [1988]).In any event, the defendant's contention is without merit. The challenged remarks wereeither permissible rhetorical comment (see People v Galloway, 54 NY2d 396[1981]), or fair comment on the evidence (see People v Ashwal, 39 NY2d 105,109 [1976]).
The defendant's remaining contentions are without merit. Mastro, J.P., Roman, Sgroiand Maltese, JJ., concur.