| People v Simmons |
| 2017 NY Slip Op 05179 [151 AD3d 628] |
| June 27, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Troy Simmons, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee ofcounsel) and Shriver & Jacobson LLP, New York (Alejandra Ávila of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Philip Morrow of counsel), forrespondent.
Appeal from judgment, Supreme Court, New York County (Edward J. McLaughlin, J. atsuppression hearing; Neil E. Ross, J. at plea and sentencing), rendered May 20, 2015, convictingdefendant of criminal possession of a weapon in the third degree, and sentencing him to a term of30 days, held in abeyance, and the matter remanded to Supreme Court for determination, basedupon the evidence presented at the suppression hearing, of the issues raised at the hearing but notdetermined therein.
The court erred in denying defendant's suppression motion on the ground that the officerrecovered the gravity knife from defendant based on a "search incident to arrest." Although therecord supports a finding that the officer had probable cause to arrest defendant for assault basedon reliable information from the assault victim, the People failed to meet their burden (seePeople v Di Stefano, 38 NY2d 640, 652 [1976]) of demonstrating that the officer intended toarrest defendant for the assault at the time he recovered the knife (see People v Reid, 24 NY3d 615,620 [2014]; People v Mangum, 125AD3d 401 [1st Dept 2015]). The officer's testimony, viewed as a whole, indicates that, whenhe noticed the knife upon approaching defendant and retrieved it from defendant's pocket, theofficer's intent was to inquire about the assault in order to verify that defendant was indeed theman who had assaulted the victim. Further, it was not until after the officer had retrieved theknife and confirmed that it was a gravity knife that he asked about the assault.
The People argue, in the alternative, as they did at the hearing, that the officer's act of takingthe knife from defendant's pocket, where the handle of the knife and its clip were in plain view,was permissible as a self-protective minimal intrusion (see People v Miranda, 19 NY3d 912, 914 [2012]). However, as thehearing court did not rule on this issue in denying the suppression motion, and therefore did notrule adversely against defendant on this point, we may not reach it on this appeal (CPL 470.15[1]; People v LaFontaine, 92 NY2d 470 [1998]).
We therefore hold the case in abeyance and remand for determination, based on the hearingminutes, of the issues raised at the hearing but not decided (see e.g. People v Washington, 82 AD3d 570 [1st Dept 2011]). Wereject defendant's argument that, rather than remanding for further proceedings, we should grantsuppression and dismiss the indictment. As the Second Department has observed, "[W]here, ashere, the alternative issue raised by the People on appeal has not been determined by the trialcourt, and the resolution of that issue could affect the determination of the suppression motion,we deem it appropriate to hold the defendant's appeal in abeyance and remit the matter forconsideration of the alternative issue" (People v Chazbani, 144 AD3d 836, 839 [2d Dept 2016]). This casedoes not involve a failure of the People to preserve the issue (see People v Dodt, 61NY2d 408, 416 [1984]) or to present the necessary evidence (see People v Havelka, 45NY2d 636, 642-645 [1978]). Accordingly, granting suppression in this procedural posture wouldgive defendant an undeserved windfall. Concur—Acosta, P.J., Renwick, Richter andWebber, JJ.