People v. Ginosyan

• Decision Date: 20 March 1989
• Citation: 148 A.D.2d 630,539 N.Y.S.2d 92
• Parties: The PEOPLE, etc., Respondent, v. Stephen GINOSYAN, appellant.
• Court: New York Supreme Court — Appellate Division

Page 92

539 N.Y.S.2d 92

148 A.D.2d 630

The PEOPLE, etc., Respondent, v. Stephen GINOSYAN, appellant.

Supreme Court, Appellate Division Second Department.

March 20, 1989.

Philip L. Weinstein, New York City (Michael A. Gross of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Jeanette Lifschitz of counsel), for respondent.

Before EIBER, J.P., and KOOPER, SULLIVAN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Dunki J.), rendered April 10, 1986, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, in part, after a hearing (Chetta, J.), of that branch of the defendant's omnibus motion which sought to suppress certain physical evidence.

ORDERED that the judgment is affirmed.

The People's evidence indicated that on March 30, 1985, the defendant shot the victim twice at close range. Three people witnessed the shooting. The police, relying on a description of a suspicious man leaving the area which had been supplied by two persons who did not witness the shooting, apprehended the defendant a few blocks away and within minutes of the incident. After a combined Mapp-Wade hearing, the hearing court determined that the detention of the defendant was not supported by the requisite probable cause. Certain evidence was excluded as the fruit of an illegal detention. However, the hearing court found that a gun and a homemade leather loop, which appeared to be a gun holster, were not subject to exclusion. The gun was recovered from a dumpster approximately one block from the scene of the shooting. The loop holster was discovered pursuant to a search of the defendant's person at the police station.

The defendant contends that the gun and the loop holster were fruits of the illegal detention and should have been suppressed. However, inasmuch as the gun constituted abandoned property (see generally, People v. Boodle, 47 N.Y.2d 398, 418 N.Y.S.2d 352, 391 N.E.2d 1329, cert. denied 444 U.S. 969, 100 S.Ct. 461, 62 L.Ed.2d 383; People v. Medina, 107 A.D.2d 302, 486 N.Y.S.2d 754 and was recovered from a garbage dumpster in which the defendant had no legitimate expectation of privacy ( see generally, California v. Greenwood, 486 U.S. ----, 108 S.Ct. 1625, 100 L.Ed.2d 30; People v. Rodriguez, 69 N.Y.2d 159, 513 N.Y.S.2d 75, 505 N.E.2d 586),...