| People v Rose |
| 2015 NY Slip Op 05337 [129 AD3d 1631] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTroy Rose, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered April 30, 2012. The judgment convicted defendant, upon a nonjury verdict, ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him following anonjury trial of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]). We conclude that County Court properly refused to suppressdefendant's statement to the arresting officers, which was made without Mirandawarnings. The officers' question concerning the location of the gun did not constituteinterrogation (see People v Chestnut, 51 NY2d 14, 22-23 [1980], cert denied449 US 1018 [1980];People v Roseboro, 124 AD3d 1374, 1375 [2015]) and moreover, the publicsafety exception to the Miranda rule applied to that question (see People v Gucla, 18 AD3d478, 479 [2005], lv denied 5 NY3d 789 [2005]).
We further conclude that the court properly refused to suppress the gun seized fromdefendant's backpack during a search incident to defendant's lawful arrest (see Peoplev Smith, 59 NY2d 454, 458-459 [1983]; People v Johnson, 86 AD2d 165,166-167 [1982], affd 59 NY2d 1014 [1983]). Here, "the circumstances leading tothe arrest support a reasonable belief that the suspect may [have been able to] gainpossession of a weapon" (People v Gokey, 60 NY2d 309, 311 [1983]; see People v Capellan, 38AD3d 393, 394 [2007], lv denied 9 NY3d 873 [2007]; see generallyPeople v Wylie, 244 AD2d 247, 250-251 [1997], lv denied 91 NY2d 946[1998]), including defendant's statement that the gun was in his backpack (see People v Alvarado, 126AD3d 803, 804-805 [2015]).
Contrary to defendant's contention, the court properly curtailed his cross-examinationof one of the officers at the suppression hearing with respect to a confidential informant.Defendant was arrested pursuant to a warrant, and the existence or reliability of aconfidential informant who allegedly provided information concerning defendant'slocation "had nothing to do with the legality of the [arrest or] search and it was,therefore, irrelevant" (People v Lourdes, 175 AD2d 958, 958 [1991]; seePeople v Alfone, 206 AD2d 775, 776 [1994], lv denied 84 NY2d 1028[1995]). Inasmuch as a motion to reopen the suppression hearing would not have beensuccessful, defendant was not denied effective assistance of counsel based uponcounsel's failure to make such a motion (see People v Crespo, 117 AD3d 1538, 1539 [2014], lvdenied 23 NY3d 1035 [2014]).
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P.,Centra, Peradotto, Sconiers and Whalen, JJ.