| People v Thomas |
| 2018 NY Slip Op 08962 [167 AD3d 1050] |
| December 26, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael Thomas, Appellant. |
Paul Skip Laisure, New York, NY (Sean H. Murray of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Merri Turk Lasky, and John F. McGoldrick of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (LeslieLeach, J.), rendered June 23, 2015, convicting him of criminal possession of a weapon in thesecond degree, attempt to evade or defeat taxes on cigarettes, and unlawful possession ofunstamped or unlawfully stamped cigarettes, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing (Kenneth Holder, J.), of that branch of thedefendant's omnibus motion which was to suppress a gun recovered by the police.
Ordered that the matter is remitted to the Supreme Court, Queens County, for a newdetermination of that branch of the defendant's omnibus motion which was to suppress a gun inaccordance herewith, and thereafter a report to this Court advising of the new determination, andthe appeal is held in abeyance in the interim. The Supreme Court shall file its report with allconvenient speed.
The defendant was charged with, inter alia, two counts of criminal possession of a weapon inthe second degree, attempt to evade or defeat taxes on cigarettes, and unlawful possession ofunstamped or unlawfully stamped cigarettes. He moved to suppress a gun and cigarettes that thepolice recovered from his vehicle.
At the suppression hearing, a police officer testified that he observed the defendant give acarton of cigarettes to an unidentified individual in exchange for money. The police officer andhis partner approached the defendant, who was standing behind a minivan with the door to theminivan open. The police officers observed several duffel bags in the vehicle. One of the duffelbags was open and contained additional cigarette cartons bearing Georgia tax stamps. Theofficers arrested the defendant. Since one of the police officers was going to drive the defendant'svehicle to the police station, for safety, that officer performed a quick check of the defendant'svehicle. He found a loaded gun in a closed drawer under the front passenger seat.
In a written decision following the suppression hearing, the Supreme Court denied thatbranch of the defendant's omnibus motion which was to suppress the gun and the cigarettes "forthe reasons stated on the record." In an oral decision, the court explicitly found that the recoveryof the cigarettes was lawful under the inevitable discovery and search incident to a lawful arrestexceptions to the warrant requirement, but the court did not explicitly address the suppression ofthe gun.
This Court is statutorily limited to reviewing errors or defects that "may have adverselyaffected the appellant" (CPL 470.15 [1]), and thus has no power "to review issues either decidedin an appellant's favor, or not ruled upon, by the trial court" (People v LaFontaine, 92NY2d 470, 474 [1998]). The Court of Appeals has observed that, once the Appellate Divisionhas rejected a trial court's ruling on a particular issue, it may not proceed to consider other issuesthat might provide a basis for affirmance if they were not determined adversely to the appellant(see id.; People v Chazbani,144 AD3d 836, 838 [2016]).
Here, the defendant contends that the Supreme Court incorrectly denied that branch of hisomnibus motion which was to suppress the gun, arguing that the inevitable discovery and searchincident to a lawful arrest exceptions did not apply. The People contend, as they did before theSupreme Court, that the automobile exception applies. However, the court did not set forth thebasis for its denial of the branch of the defendant's motion which was to suppress the gun.Furthermore, on this record, we cannot determine the unarticulated predicate for the court'sevidentiary ruling (see People vNicholson, 26 NY3d 813, 817 [2016]). Therefore, in order to avoid exceeding ourstatutory authority pursuant to CPL 470.15 (1), we hold the appeal in abeyance and remit thematter to the Supreme Court, Queens County, for a new determination of that branch of thedefendant's omnibus motion which was to suppress the gun. The court shall articulate the basisfor its determination based upon the evidence presented at the previously conducted suppressionhearing. We decide no other issues at this time. Mastro, J.P., Leventhal, Sgroi and Maltese, JJ.,concur.