| People v Henagin |
| 2015 NY Slip Op 04864 [129 AD3d 864] |
| June 10, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Lawrence Henagin, Appellant. |
Matthew W. Brissenden, P.C., Garden City, N.Y., for appellant.
Madeline Singas, Acting District Attorney, Mineola, N.Y. (Donald Berk and JosephMogelnicki of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Berkowitz, J.), rendered July 3, 2013, convicting him of attempted burglary in thesecond degree, criminal mischief in the fourth degree, and criminal possession of stolenproperty in the fifth degree, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing, of that branch of the defendant's omnibusmotion which was to suppress physical evidence.
Ordered that the judgment is reversed, on the law, that branch of the defendant'somnibus motion which was to suppress physical evidence is granted, count four of theindictment, charging criminal mischief in the fourth degree, and count five of theindictment, charging criminal possession of stolen property in the fifth degree, aredismissed, and the matter is remitted to the Supreme Court, Nassau County, for a newtrial on the charge of attempted burglary in the second degree under count two of theindictment.
The defendant was accused of burglarizing two houses in Valley Stream on the sameday, one on South Terrace Place and the other on Fletcher Avenue. A resident of thehouse on Fletcher Avenue testified at trial that she arrived home and found the defendantin an open first-floor window of the house, with his body partially inside the house.Another resident of the Fletcher Avenue house, who was home at the time, testified thatshe also observed the defendant and told him that she was calling the police, and thedefendant then fled on foot. Soon thereafter, and within a few blocks, the defendant wasstopped by a police officer, based on the description provided by the residents. In thecourse of performing what he testified was a protective pat-down, the officer removedfrom the defendant's front pants pocket a plastic bag containing items of gold jewelry. Atthe subsequent trial, a resident of the house on South Terrace Place identified thatjewelry as hers, and testified that she had arrived home that day to find a broken windowand several items, including the jewelry, missing from her home.
The defendant was charged with two counts of burglary in the second degree, one asto each house, two counts of criminal mischief in the fourth degree, each of which wasbased on the defendant's act of damaging a window, and one count of criminalpossession of stolen property in the fifth degree. The defendant moved, among otherthings, to suppress the jewelry recovered from his pocket, and the Supreme Court deniedthat branch of his motion. After a jury trial, the defendant [*2]was convicted of the lesser-included offense of attemptedburglary in the second degree with respect to the house on Fletcher Avenue. Thedefendant was also found guilty of criminal possession of stolen property in the fifthdegree and one of the counts of criminal mischief in the fourth degree. The defendantappeals.
At the suppression hearing, the People expressly disclaimed reliance on the theorythat the search of the defendant and the seizure of the jewelry from his pants pocket wasjustified because the police had probable cause to arrest the defendant at the moment hewas stopped, and the hearing court did not address that theory. Thus, the People may notassert this theory on appeal (see People v Laskaris, 82 AD2d 34, 41-42 [1981]).Instead, the People argued that the jewelry inevitably would have been discovered, andthe Supreme Court relied on that theory in denying that branch of the defendant's motionwhich was to suppress the jewelry. The court properly determined that the record doesnot support a finding that the police officer legitimately believed that the jewelry mightbe some kind of weapon (see People v Peart, 230 AD2d 922 [1996]). However,as the People now correctly concede, the court erred in its determination that the jewelryinevitably would have been discovered through normal police procedures, as theinevitable discovery doctrine does not apply to primary evidence, that is, "the veryevidence obtained in the illegal search," such as the jewelry at issue here (People vStith, 69 NY2d 313, 318 [1987]; see People v Julien, 100 AD3d 925, 927 [2012]; People v Mais, 71 AD3d1163, 1165 [2010]). Accordingly, that branch of the defendant's motion which wasto suppress the jewelry should have been granted.
Since the jewelry recovered from the defendant should have been suppressed, thedefendant's conviction of criminal possession of stolen property in the fifth degree undercount five of the indictment, premised upon his possession of the subject jewelry, and thesentence imposed thereon, must be vacated, and that count of the indictment dismissed(see People v Julien, 100 AD3d at 927).
With regard to the remaining counts, we conclude that, contrary to the People'scontention, the failure to suppress the jewelry was not harmless beyond a reasonabledoubt (see People v Crimmins, 36 NY2d 230, 237 [1975]). The evidence of thedefendant's guilt of those offenses, without reference to the improperly admittedevidence, was not overwhelming (see id. at 241).
Moreover, with regard to the offense of attempted burglary in the second degree, thedefendant's possession of the jewelry was highly probative on the element of intent tocommit a crime while inside the dwelling, and thus there is a reasonable possibility thatthe admission of the jewelry into evidence might have contributed to the defendant'sconviction. Accordingly, we remit the matter for a new trial on the charge of attemptedburglary in the second degree.
With regard to the offense of criminal mischief in the fourth degree, the People havefailed to demonstrate that the count of which the defendant was convicted did not relateto the broken window at the house on South Terrace Place. The two counts of theindictment charging criminal mischief in the fourth degree were identically worded, and,unlike the burglary counts, did not specify the house to which each count related. Nor isthere any other indication in the record as to which house was the subject of the criminalmischief count of which the defendant was convicted. Contrary to the People'scontention, the jury's finding that the defendant was guilty of attempted burglary in thesecond degree only with respect to the house on Fletcher Avenue does not establish withcertainty that the criminal mischief count on which it found the defendant guilty was theone that related to the Fletcher Avenue house, particularly since the evidence that awindow was actually broken was stronger with respect to the house on South TerraceAvenue. Thus, there is a reasonable possibility that the admission of the jewelry intoevidence might have contributed to the defendant's conviction of criminal mischief in thefourth degree, since the presence of that jewelry in the defendant's pocket wascompelling evidence that he was the person who broke the window at the house on SouthTerrace Place. Furthermore, since there was no testimony linking either criminal mischiefcount to a particular house, it would be inappropriate to remit the matter for a new trialon the charge of criminal mischief in the fourth degree, since the possibility exists thatthe People would be permitted to introduce evidence at such a trial in support of anoffense of which the defendant has been acquitted, thus raising serious double jeopardyconcerns (see People v Smith, 180 AD2d 835, [*3]836 [1992]; see also People v Garcia, 186 AD2d221, 222 [1992]; People v Knight, 161 AD2d 668 [1990]; People vCaliendo, 158 AD2d 531, 531 [1990]). Accordingly, the defendant's conviction ofcriminal mischief in the fourth degree under count four of the indictment, and thesentence imposed thereon, must be vacated, and that count of the indictmentdismissed.
In light of our determination, we need not address the defendant's remainingcontentions. Balkin, J.P., Chambers, Miller and Hinds-Radix, JJ., concur.