People v. Kelly
| Decision Date | 30 April 1991 |
| Citation | 172 A.D.2d 458,568 N.Y.S.2d 804 |
| Parties | The PEOPLE of the State of New York, Appellant, v. Dave KELLY, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Before ROSENBERGER, J.P., and KUPFERMAN, KASSAL and RUBIN, JJ.
Order, Supreme Court, New York County (Alvin Schlesinger, J.), entered October 29, 1990, which granted defendant's motion to suppress physical evidence, affirmed.
In this People's appeal, which challenges the grant of defendant's motion to suppress physical evidence, the issue is whether the People's proof was sufficient to establish an unequivocal intent to abandon the property seized. Upon examination of the record, we conclude that it was not.
At approximately 11:30 p.m. on June 18, 1990, P.O. Enrique Calderin was on uniform patrol in a marked police car driven by his partner, P.O. Brian Fleming. As the eastbound patrol car traveled slowly on 134th Street near Lenox Avenue in Manhattan, Calderin observed defendant standing on the stoop of 108 West 134th Street with two women. Holding a small brown paper bag in his hand, defendant turned in the direction of the passing police car and then walked into the lobby of the building.
Calderin asked his partner to stop the vehicle, and he approached the building in time to see defendant place the brown paper bag inside of a recessed area in the lobby wall. A metal flap covered this wall opening, which was part of an incomplete buzzer system located just to the left of the entrance door.
After placing the bag into this covered wall space, defendant returned to the stoop, where he encountered Calderin. The officer asked defendant where he had obtained money which he held in his hand, and defendant replied that he had just cashed his welfare check. With no further conversation, Officer Calderin entered the lobby, lifted the closed metal flap and seized the paper bag. Upon opening it, he recovered 26 vials of what appeared to be crack cocaine. Calderin then arrested defendant, who was still on the stoop, approximately four feet from the intercom box, on narcotics charges. Defendant denied having placed the bag in the wall space.
The issue of whether a suspect has abandoned personal property and thus relinquished his expectation of privacy therein, turns on intent. See People v. Howard, 50 N.Y.2d 583, 593, 430 N.Y.S.2d 578, 408 N.E.2d 908, cert. denied, 449 U.S. 1023, 101 S.Ct. 590, 66 L.Ed.2d 484; United States v. Cowan, 396 F.2d 83, 87 (2d Cir.1968...
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...against the waiver of constitutional rights, and it is the People's burden to overcome that presumption (see also People v. Kelly, 172 A.D.2d 458, 568 N.Y.S.2d 804, affd. 79 N.Y.2d 899, 581 N.Y.S.2d 661, 590 N.E.2d This court stated in People v. Marrero, 173 A.D.2d 244, 245, 569 N.Y.S.2d 44......
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...a purposeful divestment of possession of the item searched" (loc. cit., at 110, 643 N.Y.S.2d 502, 666 N.E.2d 207; People v. Kelly, 172 A.D.2d 458, 568 N.Y.S.2d 804, affd. 79 N.Y.2d 899, 581 N.Y.S.2d 661, 590 N.E.2d It is the People's burden to overcome the presumption against abandonment by......
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United States v. Kyle
...not thrown the bundles away and did not walk away from the bundles after hiding them. Id. at 1254. Similarly, in People v. Kelly , 172 A.D.2d 458, 568 N.Y.S.2d 804 (1991), the court held that Mr. Kelly did not abandon a brown paper bag by putting the bag behind a metal flap in the lobby of ......