People v. Houston

143 A.D.3d 737

38 N.Y.S.3d 259

2016 N.Y. Slip Op. 06510

The PEOPLE, etc., Respondent,

v.Tyrone HOUSTON, Appellant.

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

Oct. 5, 2016.

Lynn W.L. Fahey, New York, NY (Mark W. Vorkink of counsel), for appellant, and appellant pro se.

Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, Sholom J. Twersky, and Jodi L. Mandel of counsel), for respondent.

MARK C. DILLON, J.P. LEONARD B. AUSTIN, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.

Appeals by the defendant from (1) a resentence of the Supreme Court, Kings County (Reichbach, J.), imposed February 9, 2012, upon his conviction of robbery in the first degree and criminal possession of a weapon in the second degree, the resentence being an indeterminate term of 16 years to life imprisonment upon his conviction of criminal possession of a weapon in the second degree, to run concurrently with the determinate term of imprisonment previously imposed by the same court upon his conviction of robbery in the first degree, and (2) a judgment of the same court rendered October 26, 2011, convicting him of robbery in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal from the judgment brings up for review the denial, after a hearing (Chun, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence found inside his briefcase. On the appeal from the resentence, assigned counsel has submitted a brief in accordance with Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, in which she moves for leave to withdraw as counsel for the appellant.

ORDERED that the resentence is affirmed; and it is further,

ORDERED that the judgment is modified, on the law, by vacating the conviction of robbery in the first degree and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, that branch of the defendant's omnibus motion which was to suppress physical evidence found inside his briefcase is granted, and the matter is remitted to the Supreme Court, Kings County, for a new trial as to the count of the indictment charging the defendant with robbery in the first degree.

With respect to the appeal from the resentence, we are satisfied with the sufficiency of the brief filed by the defendant's assigned counsel pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, and we have also reviewed the defendant's pro se supplemental brief. Upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on that appeal. Counsel's application for leave to withdraw as counsel on the appeal from the resentence is, therefore, granted (see Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 ; Matter of Giovanni S. [Jasmin A.], 89 A.D.3d 252, 931 N.Y.S.2d 676 ; People v. Paige, 54 A.D.2d 631, 387 N.Y.S.2d 399 ; cf. People v. Gonzalez, 47 N.Y.2d 606, 419 N.Y.S.2d 913, 393 N.E.2d 987 ).

In the afternoon of August 25, 2009, a man wearing a tan suit and black shoes, and carrying a black briefcase, entered a convenience store located at 377 Flatbush Avenue in Kings County, and stole two adult magazines, approximately $500 in cash, and four packs of Newport cigarettes, at gunpoint. Immediately after the robbery, the store clerk pointed out the defendant, who was standing on the sidewalk near the store, to a police officer. The clerk told the officers that the defendant had a gun. After a foot chase, the defendant surrendered to the police. The police found a loaded gun inside the defendant's jacket pocket, and placed him under arrest. The police then searched the defendant's black briefcase, which he had placed on a parked car at the time of his surrender. Inside the briefcase, the officers found two adult magazines, approximately $500 in cash, and four packs of Newport cigarettes.

At the suppression hearing, the People argued that the warrantless search of the briefcase was proper, as it was conducted incident to the defendant's lawful arrest. The Supreme Court adopted the People's theory, and ruled that the search of the briefcase was proper because it was performed after the lawful arrest of the defendant. The court, therefore, denied that branch of the defendant's omnibus motion which was to suppress the adult magazines, the cash, and the packs of cigarettes. Following a jury trial, the defendant was convicted of robbery in the first degree and criminal possession of a weapon in the second degree.

On appeal, the defendant contends that there were no exigent circumstances that would justify a warrantless search. Contrary to the People's contention, this issue is preserved for appellate review. This case is distinguishable from People v. Miranda , 27 N.Y.3d 931, 30 N.Y.S.3d 600, 50 N.E.3d 224, in which the hearing court had addressed only the issue of probable cause to arrest in the context of a warrantless search incident to arrest.

The Supreme Court's suppression determination with respect to the adult magazines, cash, and packs of cigarettes, was erroneous. Because “[a]ll warrantless searches presumptively are unreasonable per se, ... [w]here a warrant has not been obtained, it is the People who have the burden of overcoming this presumption of unreasonableness” (People v. Jimenez, 22 N.Y.3d 717, 721, 985 N.Y.S.2d 456, 8 N.E.3d 831 [internal quotation marks and citations omitted]; see People v. Alvarado, 126 A.D.3d 803, 804, 5 N.Y.S.3d 271 ; People v. Thompson, 118 A.D.3d 922, 924, 988 N.Y.S.2d 209 ; People v. Warner, 94 A.D.3d 916, 917, 941 N.Y.S.2d 865 ). Under the New York State Constitution, an individual's right of privacy in his or her personal effects dictates that a warrantless search incident to arrest be deemed unreasonable unless (1) it satisfies certain “spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest” and (2) it is justified by the presence of exigent circumstances (People v. Jimenez, 22 N.Y.3d at 721, 985 N.Y.S.2d 456, 8 N.E.3d 831 [internal quotation marks omitted]; see People v. Gokey, 60 N.Y.2d 309, 312, 469 N.Y.S.2d 618, 457 N.E.2d 723 ; People v. Alvarado, 126 A.D.3d at 804, 5 N.Y.S.3d 271 ; People v. Thompson, 118 A.D.3d at 924, 988 N.Y.S.2d 209 ; People v. Warner, 94 A.D.3d at 917, 941 N.Y.S.2d 865 ). “Exigency must be affirmatively demonstrated” (People v. Jimenez, 22 N.Y.3d at 722, 985 N.Y.S.2d 456, 8 N.E.3d 831 ). Exigent circumstances may be established by a showing that the search was necessary to ensure the safety of the public or the arresting officer, or that it was necessary to prevent the destruction or concealment of evidence (id. ; see People v. Gokey, 60 N.Y.2d at 312, 469 N.Y.S.2d 618, 457 N.E.2d 723 ; People v. Thompson, 118 A.D.3d at 924, 988 N.Y.S.2d 209 ; People v. Warner, 94 A.D.3d at 917, 941 N.Y.S.2d 865 ; People v. Hernandez, 40 A.D.3d 777, 836 N.Y.S.2d 219 ).

Contrary to the Supreme Court's determination, the search of the briefcase was not...