| People v Grimes |
| 2019 NY Slip Op 06411 [175 AD3d 712] |
| August 28, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jeffrey J. Grimes, Appellant. |
Janet E. Sabel, New York, NY (Jonathan R. McCoy of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Ellen C. Abbot, Kathryn A.A. O'Neill, and John McGoldrick of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (BarryKron, J., at plea; John Zoll, J., at sentence), rendered February 14, 2017, convicting him ofcriminal possession of a weapon in the second degree, resisting arrest, and criminal possession ofmarijuana in the fifth degree, upon his plea of guilty, and imposing sentence. The appeal bringsup for review the denial, after a hearing (Steven Paynter, J.), of that branch of the defendant'somnibus motion which was to suppress physical evidence.
Ordered that the judgment is modified, on the law, by vacating the conviction of criminalpossession of a weapon in the second degree, vacating the sentence imposed thereon, anddismissing that count of the indictment; as so modified, the judgment is affirmed, and that branchof the defendant's omnibus motion which was to suppress the physical evidence that wasrecovered from inside his backpack is granted.
On April 30, 2015, at approximately 2:30 p.m., police officers went to the defendant's homein response, in part, to information they had received from an informant that the defendant wasselling drugs out of his home and kept a firearm concealed inside of a distinctive backpack.When the officers arrived, they observed the defendant smoking a marijuana cigarette on theporch of the home. Upon approaching the defendant and identifying themselves, the officersobserved the defendant grab a distinctive backpack matching the description given by theinformant, curse out loud, and run inside of the house. The officers pursued the defendant, whodropped the backpack inside the front doorway and proceeded up the stairs toward the secondfloor of the house. The defendant was apprehended and handcuffed on the stairs. After thedefendant was secured, one of the officers at the scene opened the defendant's backpack, insideof which he found a firearm and a quantity of marijuana.
The defendant was subsequently charged with, inter alia, criminal possession of a weapon inthe second degree. Following a suppression hearing, the hearing court denied that branch of thedefendant's omnibus motion which was to suppress the physical evidence, reasoning in part thatthe firearm had been recovered under exigent circumstances. The defendant thereafter pleadedguilty to, inter alia, criminal possession of a weapon in the second degree.
We agree with the defendant that the Supreme Court erred in denying that branch of hisomnibus motion which was to suppress the physical evidence that was recovered from inside hisbackpack. " 'The protections embodied in article I, § 12 of the New YorkState Constitution serve to shield citizens from warrantless intrusions on their privacy interests,including their personal effects' " (People v Geddes-Kelly, 163 AD3d 716, 717 [2018], quoting People v Jimenez, 22 NY3d 717,719 [2014]; see People v Gokey, 60 NY2d 309, 312 [1983]). "[E]ven a bag within theimmediate control or 'grabbable area' of a suspect at the time of his [or her] arrest may not besubjected to a warrantless search incident to the arrest, unless the circumstances leading to thearrest support a reasonable belief that the suspect may gain possession of a weapon or be able todestroy evidence located in the bag" (People v Geddes-Kelly, 163 AD3d at 717 [internalquotation marks and citations omitted]; see People v Anderson, 142 AD3d 713, 715-716 [2016]). The proofadduced at the suppression hearing failed to establish the presence of such circumstances (seePeople v Geddes-Kelly, 163 AD3d at 717; People v Evans, 84 AD3d 573, 574-575 [2011]; People v Chisolm, 7 AD3d 728,729 [2004]; People v Branch, 259 AD2d 556, 557 [1999]; People v Rosado, 214AD2d 375, 376 [1995]).
Accordingly, the defendant's conviction of criminal possession of a weapon in the seconddegree, premised upon the recovery of the firearm, must be vacated and that count of theindictment must be dismissed. In view of the foregoing, we do not reach the defendant'salternative challenges to his conviction of criminal possession of a weapon in the second degree.Scheinkman, P.J., Dillon, Leventhal and Miller, JJ., concur.