| People v Hawkins |
| 2015 NY Slip Op 05775 [130 AD3d 426] |
| July 2, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Brian Hawkins, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Steven Berko ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sabrina Margret Bierer ofcounsel), for respondent.
Judgment, Supreme Court, New York County (Carol Berkman, J.), renderedNovember 14, 2007, convicting defendant, upon his plea of guilty, of criminalpossession of a weapon in the second degree, and sentencing him to a term of3
The court properly denied defendant's suppression motion. Defendant argued onlythat the pistol found in the trunk of his car should be suppressed as the fruit of anunlawful arrest, and that claim was without merit because he was at the very leastlawfully arrested for driving with a suspended license. Defendant failed to argue, as hedoes on appeal, that the search of the car was not a lawful search incident to arrest or alawful search under the automobile exception (see Arizona v Gant, 556 US 332[2009]). As a result, the People were never placed on notice of any need to develop therecord as to these issues, or to otherwise establish the validity of the search, including bypresenting evidence that defendant may have consented to the search (see People vMartin, 50 NY2d 1029 [1980]; People v Tutt, 38 NY2d 1011 [1976]; People v Jimenez, 109 AD3d764 [1st Dept 2013]).
While the prosecutor and court briefly alluded to the search of the car, the courtspecifically noted that defendant had focused on the issue of probable cause for thearrest, and that as a result, the record regarding the circumstances of the search had notbeen fully developed. Thus, the court did not "expressly decide[ ]" the issue "in responseto a protest by a party" (CPL 470.05 [2]; see also Jimenez, 109 AD3d at 764; People v Perkins, 68 AD3d494, 495 [1st Dept 2009], lv denied 14 NY3d 891 [2010]). If anything, thecourt expressly declined to decide the issues defendant raises for the first time on appeal.Accordingly, we find that defendant did not preserve his present claims, and given thelimited record presented here, we decline to review them in the interest of justice.Concur—Mazzarelli, J.P., Friedman, Richter, Manzanet-Daniels and Gische,JJ.