| People v Dessasau |
| 2019 NY Slip Op 00456 [168 AD3d 969] |
| January 23, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Delesley Dessasau, Appellant. |
Janet E. Sabel, New York, NY (Rachel L. Pecker and Lawrence T. Hausmen of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Sharon Y. Brodt of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (BarryKron, J.), rendered August 14, 2017, convicting him of criminal possession of a weapon in thesecond degree, upon his plea of guilty, and imposing sentence. The appeal brings up for reviewthe denial, after a hearing (Robert A. Schwartz, J.), of that branch of the defendant's omnibusmotion which was to suppress physical evidence.
Ordered that the judgment is reversed, on the law, that branch of the defendant's omnibusmotion which was to suppress physical evidence is granted, the indictment is dismissed, and thematter is remitted to the Supreme Court, Queens County, for further proceedings consistent withCPL 160.50.
The defendant pleaded guilty to criminal possession of a weapon in the second degree, butdid not waive his right to challenge on appeal the hearing court's denial of his omnibus motion,among other things, to suppress physical evidence, that is, the gun. Prior to entering the plea ofguilty, the defendant moved, among other things, to suppress the gun that was recovered by apolice officer from a bag in the rear seat of a parked minivan in which the defendant was the soleoccupant. At the suppression hearing, the arresting officer testified that he approached thedefendant, who was sitting in the front passenger seat of the minivan and talking with a manstanding on the sidewalk, because the officer believed that the two men were smoking marijuana.The officer testified that he removed the defendant from the minivan and frisked him out of afear for the officer's own safety; no weapon was recovered. The officer further testified that, atthat time, he realized that the two men were smoking cigars, not marijuana. Nevertheless, theofficer went around the minivan to the driver's side and opened the sliding door on that side,whereupon he observed a firearm sticking out of a bag behind the driver's seat.
We disagree with the hearing court's determination, sua sponte, that the defendant lackedstanding to challenge the search of the minivan. The defendant, who had told the police at thepolice station that the minivan was his work van, had standing to challenge the search. Althoughthe defendant had been sitting in the front passenger seat of the minivan, no evidence waspresented to contradict his statements that it was his work van. The defendant's statements weresufficient to establish that he exercised sufficient dominion and control over the minivan todemonstrate his own legitimate expectation of privacy therein (see People v Gonzalez, 68NY2d 950, 951 [1986]; People v Wright, 140 AD2d 656, 657-658 [1988]).
"[A]bsent probable cause, it is unlawful for a police officer to invade the interior of a stoppedvehicle once the suspects have been removed and patted down without incident, as anyimmediate threat to the officers' safety has consequently been eliminated" (People vMundo, 99 NY2d 55, 58 [2002]; see People v Torres, 74 NY2d 224, 226 [1989]; People v Baksh, 113 AD3d 626,628 [2014]). Contrary to the People's contention, under the circumstances here, where thedefendant already had been removed from the minivan and no one else was in the minivan, thepolice lacked probable cause to conduct a warrantless search by opening the sliding door of theminivan, and the weapon found as a result of the unlawful search should have been suppressed(see People v Morris, 153 AD3d729, 729-730 [2017]; People v Baksh, 113 AD3d at 628-630).
Without the weapon, there could not be sufficient evidence to prove the defendant's guilt ofcriminal possession of a weapon in the second degree beyond a reasonable doubt and, therefore,the indictment must be dismissed (seePeople v Jones, 164 AD3d 1363 [2018]; People v Baksh, 113 AD3d at630).
In light of our determination, we need not reach the defendant's remaining contentions.Mastro, J.P., Rivera, Duffy and Brathwaite Nelson, JJ., concur.