People v. Burgos

• Citation: 81 A.D.3d 558,917 N.Y.S.2d 559
• Parties: The PEOPLE of the State of New York, Respondent, v. Jose BURGOS, Defendant-Appellant.
• Decision Date: 22 February 2011
• Court: New York Supreme Court Appellate Division

917 N.Y.S.2d 559

81 A.D.3d 558

The PEOPLE of the State of New York, Respondent,

v.Jose BURGOS, Defendant-Appellant.

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

Feb. 22, 2011.

and Dewey & LeBoeuf LLP, New York (Mayur R. Patel of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), and Patterson Belknap Webb & Tyler LLP, New York (Todd S. Keithley of counsel), for respondent.

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered December 22, 2008, convicting defendant, upon his plea of guilty, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.

The court properly denied defendant's suppression motion. The People met their initial burden of coming forward, and defendant did not meet his ultimate burden of proving the illegality of the search and seizure ( see People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709 [1971] ).

The police lawfully searched defendant's backpack as incident to a lawful arrest. The officer's testimony, and the reasonable inferences that may be drawn therefrom, establish that the arrest and search were contemporaneous, that the backpack remained in defendant's grabbable area, and that it was not in the exclusive control of the police ( see People v. Smith, 59 N.Y.2d 454, 465 N.Y.S.2d 896, 452 N.E.2d 1224 [1983]; People v. Wylie, 244 A.D.2d 247, 666 N.Y.S.2d 1 [1997], lv. denied 91 N.Y.2d 946, 671 N.Y.S.2d 726, 694 N.E.2d 895 [1998]; compare People v. Gokey, 60 N.Y.2d 309, 469 N.Y.S.2d 618, 457 N.E.2d 723 [1983] ). The police properly inspected the backpack for their own safety and to prevent any possible loss, destruction or alteration of evidence. The backpack was large enough to conceal a weapon, and the officer had just seen defendant stealing merchandise and placing it in the backpack. We have considered and rejected defendant's remaining arguments, including his procedural claims.

TOM, J.P., SWEENY, ACOSTA, RENWICK, MANZANET-DANIELS, JJ., concur.