People v. Jimenez

• Decision Date: 25 September 2012
• Citation: 950 N.Y.S.2d 700,98 A.D.3d 886,2012 N.Y. Slip Op. 06252
• Parties: The PEOPLE of the State of New York, Respondent, v. Josefina JIMENEZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 886
950 N.Y.S.2d 700
2012 N.Y. Slip Op. 06252

The PEOPLE of the State of New York, Respondent,
v.
Josefina JIMENEZ, Defendant–Appellant.

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

Sept. 25, 2012.

Steven Banks, The Legal Aid Society, New York (Richard Joselson of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Noah J. Chamoy of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Darcel Clark, J.), rendered May 18, 2010, convicting defendant, after a jury trial, of criminal possession of weapon in the second degree and criminal trespass in the first degree, and sentencing her to an aggregate term of 3 1/2 years, unanimously affirmed. The matter is remitted to Supreme Court, Bronx County, for further proceedings pursuant to CPL 460.50(5).

The police lawfully searched defendant's shoulder bag as incident to a lawful arrest ( 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] ). The bag was large enough to contain a weapon and was within defendant's grabbable area at the time of her arrest for criminal trespass in connection with the police investigation of a burglary. Moreover, the police did not have exclusive control of the bag. The surrounding circumstances here support a reasonable belief in the existence of an exigency justifying a search of the bag, even though the officers did not explicitly testify at the suppression hearing that they feared for their safety ( see People v. Batista, 88 N.Y.2d 650, 654, 649 N.Y.S.2d 356, 672 N.E.2d 581 [1996];People v. Bowden, 87 A.D.3d 402, 405, 928 N.Y.S.2d 12 [2011] ).

The court properly denied defendant's application to reopen the hearing based on trial testimony. The court correctly determined that the search would still have been lawful under the additional facts revealed at trial.

The court properly exercised its discretion in denying defendant's challenges for cause to two prospective jurors. The colloquy between counsel, the court and each panelist, viewed as a whole, did not cast doubt on either panelist's ability to follow the court's instructions and render an impartial verdict ( see People v. Roberson, 249 A.D.2d 148, 149–50, 672 N.Y.S.2d 36 [1st Dept. 1998],lv. denied 92 N.Y.2d 904, 680 N.Y.S.2d 68, 702 N.E.2d 853 [1998] ).

The court conducted a thorough inquiry into allegations of juror...