In re Shermel M.

170 N.Y.S.3d 623

In the MATTER OF SHERMEL M. (Anonymous), appellant.

2021-03752

Docket No. D-14059-19

Supreme Court, Appellate Division, Second Department, New York.

Submitted—June 7, 2022

July 6, 2022

Justine Luongo, Attorney–in–Charge of the Criminal Defense Practice, New York, NY (John A. Newbery of counsel), for appellant.

Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Scott Shorr and Deborah E. Wassel of counsel), for respondent.

MARK C. DILLON, J.P., FRANCESCA E. CONNOLLY, SHERI S. ROMAN, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Shermel M. appeals from an order of disposition of the Family Court, Queens County (Dean T. Kusakabe, J.), dated April 9, 2021. The order of disposition, upon an order of fact-finding of the same court dated February 11, 2021, made upon the admission of Shermel M., finding that he committed an act which, if committed by an adult, would have constituted the crime of criminal possession of a firearm, adjudicated him a juvenile delinquent and placed him on probation for a period of 12 months. The appeal brings up for review the denial, after a hearing, of that branch of Shermel M.’s omnibus motion which was to suppress physical evidence.

ORDERED that the appeal from so much of the order of disposition as placed Shermel M. on probation for a period of 12 months is dismissed as academic, without costs or disbursements, as the period of probation has expired (see Matter of Connor C., 188 A.D.3d 1040, 1040–1041, 132 N.Y.S.3d 659 ); and it is further,

ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.

According to testimony elicited at a suppression hearing, on July 8, 2019, a police officer and his partner were on patrol in an unmarked police vehicle in the 113rd precinct. The officers were canvassing the precinct in an effort to locate a vehicle that had been reported stolen. During their canvas, the officers located the vehicle, which was parked on a street corner and unoccupied. The officers then surveilled the stolen vehicle by positioning their own vehicle approximately halfway up the block and facing in the direction of the stolen vehicle.

After observing the stolen vehicle for approximately 45 minutes, one of the officers noticed the vehicle's headlights turn on, as if someone had unlocked the vehicle with a key fob. The lights remained illuminated for approximately two to three minutes, and then turned off. No one entered the vehicle at this time. Approximately 10 to 15 minutes later, the officer again observed the headlights flash on. Within seconds, the officer observed the appellant run to the vehicle and get into the driver's seat. Before the appellant entered the vehicle, the officer observed the appellant carrying a gray fanny pack on the front of his body.

The officers approached the stolen vehicle and arrested the appellant. After the appellant's arrest, one of the officers searched the appellant's person for the keys or key fob to the stolen vehicle by patting the appellant's pockets; however, the officer was unable to locate any keys or a key fob. The officer then searched the front area of the vehicle. Upon inspection of the ignition and the center console, again the officer was unable to locate any keys or a key fob. The officer then...