People v. Chazbani

• Decision Date: 09 November 2016
• Citation: 2016 N.Y. Slip Op. 07337,40 N.Y.S.3d 513,144 A.D.3d 836
• Parties: The PEOPLE, etc., respondent, v. Tomer CHAZBANI, appellant.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 836
40 N.Y.S.3d 513
2016 N.Y. Slip Op. 07337

The PEOPLE, etc., respondent,
v.
Tomer CHAZBANI, appellant.

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

Nov. 9, 2016.

40 N.Y.S.3d 514

Warren S. Hecht, Forest Hills, NY, for appellant.

Richard A. Brown, District Attorney, Kew Gardens, NY. (John M. Castellano, Johnnette Traill, Jeanette Lifschitz, and Antara Kanth of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., SANDRA L. SGROI, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.

144 A.D.3d 836

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lopresto, J.), rendered April 20, 2015, convicting him of criminal possession of a weapon in the third degree, after a nonjury trial, and imposing sentence. The appeal brings up for review the denial, after a hearing (Paynter, J.), of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.

ORDERED that the matter is remitted to the Supreme Court, Queens County, for a new determination of those branches of the defendant's omnibus motion which were to suppress physical evidence and statements to law enforcement officials in accordance herewith, and thereafter a report to this Court advising of the new determination, and the appeal is held in abeyance in the interim. The Supreme Court shall file its report with all convenient speed.

Initially, contrary to the defendant's contention, the Supreme Court properly denied his motion to dismiss the indictment pursuant to CPL 30.30. The People satisfied their burden of showing that an adjournment from July 14, 2011, to August 11, 2011, was consensual by submitting the waiver of speedy trial rights signed by defense counsel (see People v.

40 N.Y.S.3d 515

Benard, 69 A.D.3d 952, 953, 895 N.Y.S.2d 133 ; People v. Mena, 29 A.D.3d 349, 350, 813 N.Y.S.2d 721 ; cf. People v. Rivas, 78 A.D.3d 739, 739–740, 909 N.Y.S.2d 766 ).

144 A.D.3d 837

At the suppression hearing in this case, a police officer testified that he responded to a report of an assault in progress and found three individuals, including the defendant, who had been shot in his right arm. The officer testified that the defendant told him that he had been the victim of a drive-by shooting; specifically, the assailants had driven an SUV down the street, firing multiple gunshots as they passed by. The defendant was standing near a minivan which, according to the officer's testimony, had multiple gunshot holes in it, and the defendant informed the officer that the minivan was his. Other individuals also informed the officer that the minivan belonged to the defendant. After the defendant was taken to a hospital, the officer searched the minivan for evidence, and discovered a firearm. The defendant later admitted to the police that he owned the firearm, and he was charged with criminal possession of a weapon in the third degree. After a pretrial hearing, the Supreme Court denied those branches of the defendant's motion which were to suppress the firearm and his statements to law enforcement officials. Although the People opposed the suppression motion principally on the basis that the police officer had probable cause to search the minivan, based on his testimony that, after responding to the scene of an alleged shooting, he observed bullet holes in the minivan, the court denied suppression on the ground that the defendant lacked standing to challenge the search of the minivan.

The Supreme Court erred in determining that the defendant did not have standing to challenge the search. The court found that the defendant lacked standing because “any information that the defendant was involved with this car or connected with this car was based upon statements made by unnamed individuals that the defendant had been driving this vehicle.” However, this finding is contradicted by the record. The police officer testified at the suppression hearing that the defendant himself asserted that he owned the minivan. Inasmuch as no contrary proof was presented, this evidence was sufficient to establish the defendant's standing to challenge the search of the vehicle (see People v. Gonzalez, 68 N.Y.2d 950, 951, 510 N.Y.S.2d 86, 502 N.E.2d 1001 ; cf. People v. Sanchez, 64 A.D.3d 618, 619, 882 N.Y.S.2d 296 ).

As a result of its erroneous conclusion, the Supreme Court did not consider the merits of the People's contention that suppression should be denied because the police officer had probable cause to search the minivan. On appeal, the People argue that the existence of such probable cause provides an alternative basis for upholding the ruling on the suppression motion and affirming the judgment of conviction. However, because

144 A.D.3d 838

the Supreme Court did not decide that issue adversely to the defendant, this Court is precluded from reviewing that issue on the defendant's appeal (see CPL 470.15[1] ; People v. Ingram, 18 N.Y.3d 948, 949, 944 N.Y.S.2d 470, 967 N.E.2d 695 ; People v. Concepcion, 17 N.Y.3d 192, 195, 929 N.Y.S.2d 541, 953 N.E.2d 779 ; People v. LaFontaine, 92 N.Y.2d 470, 473–474, 682...