People v. ThomasPeople v. Thomas
Paul Skip Laisure, New York, NY (Sean H. Murray of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Merri Turk Lasky, and John F. McGoldrick of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Leslie Leach, J.), rendered June 23, 2015, convicting him of criminal possession of a weapon in the second degree, attempt to evade or defeat taxes on cigarettes, and unlawful possession of unstamped or unlawfully stamped cigarettes, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Kenneth C. Holder, J.), of that branch of the defendant‘s omnibus motion which was to suppress a gun recovered by the police. By decision and order of this Court dated December 26, 2018, the matter was remitted to the Supreme Court, Queens County, for a new determination of that branch of the defendant‘s omnibus motion which was to suppress a gun and thereafter a report to this Court advising of the new determination, and the appeal was held in abeyance in the interim (People v Thomas, 167 AD3d 1050). The Supreme Court, Queens County (Kenneth C. Holder, J.), has filed a report dated February 4, 2019.
The defendant was charged, inter alia, with two counts of criminal possession of a weapon in the second degree, attempt to evade or defeat taxes on cigarettes, and unlawful possession of unstamped or unlawfully stamped cigarettes. In an omnibus motion, the defendant moved, inter alia, to suppress a gun and cigarettes that the police recovered from his vehicle.
At the suppression hearing, a police officer testified that he observed the defendant give a carton of cigarettes to an unidentified individual in exchange for money. The police officer and his partner approached the defendant, who was standing behind a minivan with the door to the minivan open. The police officers observed several duffel bags in the vehicle. One of the duffel bags was open and contained additional cigarette cartons. One of the officers opened the carton of cigarettes that had been exchanged. The packs of cigarettes in the carton had Georgia tax stamps and no New York tax stamps. The officers arrested the defendant. Since one of the police officers was going to drive the defendant‘s vehicle to the police station, for safety, that officer performed a quick check of the defendant‘s vehicle. He found a loaded gun in a closed drawer under the front passenger seat.
After a jury trial, the defendant was convicted of criminal possession of a weapon in the second degree, attempt to evade or defeat taxes on cigarettes, and unlawful possession of unstamped or unlawfully stamped cigarettes. On appeal, the defendant challenges, among other things, the denial of that branch of his omnibus motion which was to suppress the gun. However, the Supreme Court did not set forth the basis for its denial of that branch of the defendant‘s omnibus motion, and this Court was unable to determine the unarticulated predicate for the court‘s evidentiary ruling (see People v Nicholson, 26 NY3d 813, 817). Therefore, in order to avoid exceeding our statutory authority pursuant to
We agree with the Supreme Court‘s determination that the warrantless search of the defendant‘s vehicle was permissible under the automobile exception. “Pursuant to the automobile exception to the warrant requirement, a warrantless search of a vehicle is permitted when the police have probable cause to believe the vehicle contains contraband, a weapon, or evidence of a crime” (People v Vargas, 89 AD3d 771, 772; see People v Blasich, 73 NY2d 673, 678-679). Here, the police had probable cause to believe that the defendant‘s vehicle, including the closed drawer under the front passenger seat, contained contraband, a weapon, or evidence of a crime, because the arresting officers witnessed the defendant selling cigarettes bearing Georgia tax stamps (see People v DiMatteo, 62 AD3d 418, 419; People v Quagliata, 53 AD3d 670, 671-672; People v Eure, 46 AD3d 386, 387; People v Collado, 304 AD2d 836, 837).
Contrary to the defendant‘s contention, he failed to establish that he received the ineffective assistance of counsel at the suppression hearing (see
The defendant failed to preserve for appellate review his challenge to the legal sufficiency of the evidence with respect to the convictions of attempt to evade or defeat taxes on cigarettes and unlawful possession of unstamped or unlawfully stamped cigarettes (see
MASTRO, J.P., LEVENTHAL, MALTESE and CONNOLLY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court