People v. AndersonPeople v. Anderson
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Riviezzо, 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‘s tools, upon a jury vеrdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Carroll, J.), of that branch of the defendant‘s omnibus motion which was to suppress physical evidence.
Ordered that the judgment is reversed, on the law and the facts, that branch of the defendant‘s omnibus motion which was to suppress physical evidencе is granted, count three of the indictment charging criminal possession of stolen property in the fifth degree and count four of the indictment charging possession of burglar‘s tоols are dismissed, and the matter is
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‘s tools. On appeal, the defendant contends that the Supreme Court should have granted that branch of his omnibus motion which wаs to suppress physical evidence that was recovered during a warrantless search of his messenger bag that was conducted incident to his arrest. The defendant also contends that certain remarks made by the prosecutor during summation deprived him of a fair trial and that the court erred in refusing to accept a partial verdict that was initially rendered by the jury.
“The protections embodied in
“Under the State Constitution, to justify a warrantless search incident to arrest, the People must satisfy two separate requirements” (People v. Jimenez, 22 NY3d at 721). “The first imposes spatial and temporal limitations to ensure that the search is” ‘not significantly divorced in time or place from the arrest’ (id. at 721, quoting People v. Smith, 59 NY2d 454, 458 [1983]; see People v. Gokey, 60 NY2d at 312). “The second, and equally important, predicate requirеs the People to demonstrate the presence of exigent circumstances” (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 has recognized two interests underlying the exigency requirement: “the safety of the public and the arresting officer; and the protection of evidence from destruction or concealment” (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 a suspect at the time of his [or her] arrest may not be subjected to a warrantless search incident to the arrest, unless the cirсumstances leading to the arrest support a reasonable belief that the suspect may gain possession of a weapon or be able to
Here, the Supreme Court concluded that the defendant‘s messenger bag was lawfully searched incident to his arrest for burglary. However, the proof adduced at the suppression hearing failed to establish the presence of exigent circumstances justifying the warrantless search. Initially, there was insufficient evidence to support a finding of exigent circumstances relating to the safety of the public and the arresting officer (see People v. Gokey, 60 NY2d at 312). Although the police officer who testified at the suppression hearing stated that he had rеsponded to the scene after receiving a report of an individual climbing into a building through a rear window, there was no indication that the individual was armed (cf. People v. Alvarado, 126 AD3d 803, 804-805 [2015]). Nor did the offiсer testify as to any circumstances indicating the presence of a weapon (cf. People v. Smith, 59 NY2d at 459). Furthermore, the police officer did not express any concerns аbout his own safety, or the safety of the public, and the circumstances of the defendant‘s arrest did not serve to establish an objectively reasonable inferencе of police apprehension. After entering the building, the officer observed the defendant exit a first-floor apartment and enter a stairwell. The defendant was wеaring a dark green messenger bag, which was attached to his body by a single strap that crossed his chest. The officer followed the defendant up the stairwell to the second floor and saw him begin to descend another set of stairs. The officer walked down to the lobby, where he stopped the defendant. At the time that the defendant‘s bag was searched, there were approximately six police officers present. Moreover, the defendant had been cooperating with the policе by responding to a number of their questions and there is no indication that he resisted when his bag was taken off of his body. In sum, the People‘s proof failed to demonstrate that thе circumstances of the defendant‘s arrest gave rise to a reasonable belief that his bag contained either a weapon or destructible evidence. Accordingly, the court should have granted that branch of the defendant‘s omnibus motion which was to suppress physical evidence (see People v. Jimenez, 22 NY3d at 719; People v. Gokey, 60 NY2d at 312; People v. Hernandez, 40 AD3d 777, 779 [2007]; People v. Vega, 256 AD2d 730, 731 [1998]).
Since there must be a new trial, we note that, although the issue is partially unpreserved for appellate review, the defendant correctly contends that certаin comments in the prosecutor‘s summation were improper (see People v. Irving, 130 AD3d 844, 846 [2015]). For example, it was improper for the prosecutor to persist in making purposefully inflammatory remarks designed to appeal to the jury‘s sympathy, in disregard of the Supreme Court‘s repeated admonitions (see e.g. People v. Ashwal, 39 NY2d 105, 109-110 [1976]; People v. Brown, 26 AD3d 392, 393 [2006]; People v. Walters, 251 AD2d 433, 434 [1998]). Furthermore, the prosecutor denigratеd the defense by characterizing it as, among other things, “absolutely beyond absurd” (see People v. Gordon, 50 AD3d 821, 822 [2008]). It was also improper for the prosecutor to make reference to the defendant‘s pre-arrest silence (see People v. De George, 73 NY2d 614, 618 [1989]; People v. Conyers, 52 NY2d 454, 457 [1981]). Although, under the circumstances, we need not determine whether the prosecutor‘s comments deprived the defendant оf 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 partial verdict that was initially rendered by the jury is without merit (see
Although the verdict of guilty on the count of the indictment charging burglary in the second degree was properly deemed a dismissal of the count of the indictment charging burglary in the third degree by operation of law, such dismissal does not constitute an acquittal of that count (see
Dillon, J.P., Roman, Miller and LaSalle, JJ., concur.