| People v Anderson |
| 2016 NY Slip Op 05927 [142 AD3d 713] |
| August 31, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tyrone Anderson, Appellant. |
Lynn W.L. Fahey, New York, NY (Erica Horwitz of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, ThomasM. Ross, and Avshalom Yotam of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Riviezzo, J.), rendered June 13, 2011, convicting him of burglary in the second degree,criminal possession of stolen property in the fifth degree, and possession of burglar'stools, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Carroll, J.), of that branch of the defendant's omnibus motionwhich was to suppress physical evidence.
Ordered that the judgment is reversed, on the law and the facts, that branch of thedefendant's omnibus motion which was to suppress physical evidence is granted, countthree of the indictment charging criminal possession of stolen property in the fifth degreeand count four of the indictment charging possession of burglar's tools are dismissed, andthe matter is remitted to the Supreme Court, Kings County, for a new trial on the chargesof burglary in the second degree under count one of the indictment and burglary in thethird degree under count two of the indictment.
The defendant was convicted, after a jury trial, of burglary in the second degree,criminal possession of stolen property in the fifth degree, and possession of burglar'stools. On appeal, the defendant contends that the Supreme Court should have grantedthat branch of his omnibus motion which was to suppress physical evidence that wasrecovered during a warrantless search of his messenger bag that was conducted incidentto his arrest. The defendant also contends that certain remarks made by the prosecutorduring summation deprived him of a fair trial and that the court erred in refusing toaccept a partial verdict that was initially rendered by the jury.
"The protections embodied in article I, § 12 of the New York StateConstitution serve to shield citizens from warrantless intrusions on their privacy interests,including their personal effects" (People v Jimenez, 22 NY3d 717, 719 [2014]; seePeople v Gokey, 60 NY2d 309, 312 [1983]). "All warrantless searches presumptivelyare unreasonable per se," and, thus, "[w]here a warrant has not been obtained, it is thePeople who have the burden of overcoming" this presumption of unreasonableness(People v Hodge, 44 NY2d 553, 557 [1978]; see People v Jimenez, 22NY3d at 719; People v Gokey, 60 NY2d at 312).
"Under the State Constitution, to justify a warrantless search incident to arrest, thePeople must satisfy two separate requirements" (People v Jimenez, 22 NY3d at721). "The first [*2]imposes spatial and temporallimitations to ensure that the search is 'not significantly divorced in time or place fromthe arrest' " (id. at 721, quoting People v Smith, 59 NY2d 454,458 [1983]; see People v Gokey, 60 NY2d at 312). "The second, and equallyimportant, predicate requires the People to demonstrate the presence of exigentcircumstances" (People v Jimenez, 22 NY3d at 722; see People v Gokey,60 NY2d at 312; People v Smith, 59 NY2d at 458). The Court of Appeals hasrecognized two interests underlying the exigency requirement: "the safety of the publicand the arresting officer; and the protection of evidence from destruction orconcealment" (People v Gokey, 60 NY2d at 312; see People v Jimenez,22 NY3d at 722). "[E]ven a bag 'within the immediate control or "grabbable area" of asuspect at the time of his [or her] arrest may not be subjected to a warrantless searchincident to the arrest, unless the circumstances leading to the arrest support a reasonablebelief that the suspect may gain possession of a weapon or be able to destroy evidencelocated in the bag' " (People v Jimenez, 22 NY3d at 722, quotingPeople v Gokey, 60 NY2d at 311). "While an officer need not affirmativelytestify as to safety concerns to establish exigency, such apprehension must be objectivelyreasonable" (People v Jimenez, 22 NY3d at 723; see People v Batista, 88NY2d 650, 654 [1996]; People v Moore, 32 NY2d 67, 72 [1973]).
Here, the Supreme Court concluded that the defendant's messenger bag was lawfullysearched incident to his arrest for burglary. However, the proof adduced at thesuppression hearing failed to establish the presence of exigent circumstances justifyingthe warrantless search. Initially, there was insufficient evidence to support a finding ofexigent circumstances relating to the safety of the public and the arresting officer (seePeople v Gokey, 60 NY2d at 312). Although the police officer who testified at thesuppression hearing stated that he had responded to the scene after receiving a report ofan individual climbing into a building through a rear window, there was no indicationthat the individual was armed (cf. People v Alvarado, 126 AD3d 803, 804-805 [2015]).Nor did the officer testify as to any circumstances indicating the presence of a weapon(cf. People v Smith, 59 NY2d at 459). Furthermore, the police officer did notexpress any concerns about his own safety, or the safety of the public, and thecircumstances of the defendant's arrest did not serve to establish an objectivelyreasonable inference of police apprehension. After entering the building, the officerobserved the defendant exit a first-floor apartment and enter a stairwell. The defendantwas wearing a dark green messenger bag, which was attached to his body by a singlestrap that crossed his chest. The officer followed the defendant up the stairwell to thesecond floor and saw him begin to descend another set of stairs. The officer walkeddown to the lobby, where he stopped the defendant. At the time that the defendant's bagwas searched, there were approximately six police officers present. Moreover, thedefendant had been cooperating with the police by responding to a number of theirquestions and there is no indication that he resisted when his bag was taken off of hisbody. In sum, the People's proof failed to demonstrate that the circumstances of thedefendant's arrest gave rise to a reasonable belief that his bag contained either a weaponor destructible evidence. Accordingly, the court should have granted that branch of thedefendant's omnibus motion which was to suppress physical evidence (see People vJimenez, 22 NY3d at 719; People v Gokey, 60 NY2d at 312; People v Hernandez, 40 AD3d777, 779 [2007]; People v Vega, 256 AD2d 730, 731 [1998]).
Since the materials recovered from the defendant's messenger bag should have beensuppressed, the defendant's convictions of criminal possession of stolen property in thefifth degree under count three of the indictment and possession of burglar's tools undercount four of the indictment, which were both premised upon the defendant's possessionof the subject materials, and the sentences imposed thereon, must be vacated, and thosecounts of the indictment dismissed (see People v Henagin, 129 AD3d 864, 866 [2015]; People v Julien, 100 AD3d925, 927 [2012]). With regard to the remaining conviction of burglary in the seconddegree, contrary to the People's contention, the failure to suppress the materials recoveredfrom the defendant's messenger bag was not harmless beyond a reasonable doubt (seePeople v Crimmins, 36 NY2d 230, 237 [1975]). The physical evidence recoveredfrom the defendant's messenger bag was highly probative on the element of intent tocommit a crime while inside the dwelling, and thus there is a reasonable possibility thatits admission into evidence might have contributed to the defendant's conviction (seePeople v Henagin, 129 AD3d at 866).
Since there must be a new trial, we note that, although the issue is partiallyunpreserved for appellate review, the defendant correctly contends that certain commentsin the [*3]prosecutor's summation were improper (see People v Irving, 130 AD3d844, 846 [2015]). For example, it was improper for the prosecutor to persist inmaking purposefully inflammatory remarks designed to appeal to the jury's sympathy, indisregard of the Supreme Court's repeated admonitions (see e.g. People vAshwal, 39 NY2d 105, 109-110 [1976]; People v Brown, 26 AD3d 392, 393 [2006]; People vWalters, 251 AD2d 433, 434 [1998]). Furthermore, the prosecutor denigrated thedefense by characterizing it as, among other things, "absolutely beyond absurd" (see People v Gordon, 50 AD3d821, 822 [2008]). It was also improper for the prosecutor to make reference to thedefendant's pre-arrest silence (see People v De George, 73 NY2d 614, 618[1989]; People v Conyers, 52 NY2d 454, 457 [1981]). Although, under thecircumstances, we need not determine whether the prosecutor's comments deprived thedefendant of a fair trial, we deem it appropriate to note our disapproval of such conduct(see e.g. People v Staley, 130 AD2d 601 [1987]).
The defendant's contention that the Supreme Court should have accepted the partialverdict that was initially rendered by the jury is without merit (see CPL 310.50[2]; People v Robinson, 45 NY2d 448, 452 [1978]; see also CPL 310.70[1] [a]; People v Bastien, 180 AD2d 691, 692 [1992]; People v Adams,123 AD2d 355, 355 [1986]). The defendant's remaining contentions are unpreserved forappellate review (see CPL 470.05), and we decline to review them in the exerciseof our interest of justice jurisdiction.
Although the verdict of guilty on the count of the indictment charging burglary in thesecond degree was properly deemed a dismissal of the count of the indictment chargingburglary in the third degree by operation of law, such dismissal does not constitute anacquittal of that count (see CPL 300.40 [3] [b]). Accordingly, we remit the matterto the Supreme Court, Kings County, for a new trial on the charges of burglary in thesecond degree and burglary in the third degree (see CPL 470.55 [1]). Dillon, J.P.,Roman, Miller and LaSalle, JJ., concur.