People v. Marcial

• Decision Date: 02 November 2022
• Docket Number: 2017-01368,Ind. No. 5477/15
• Citation: 211 A.D.3d 98,178 N.Y.S.3d 107
• Parties: The PEOPLE, etc., respondent, v. Benjamin MARCIAL, appellant.
• Court: New York Supreme Court — Appellate Division

211 A.D.3d 98

178 N.Y.S.3d 107

The PEOPLE, etc., respondent,

v.Benjamin MARCIAL, appellant.

2017-01368

Ind. No. 5477/15

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

Argued—January 4, 2022

November 2, 2022

Patricia Pazner, New York, NY (Alexis A. Ascher of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Sholom J. Twersky, and Rebecca Height of counsel), for respondent.

COLLEEN D. DUFFY, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, LINDA CHRISTOPHER, JJ.

OPINION & ORDER

CHAMBERS, J.

On January 24, 2015, a police officer initiated a traffic stop of the defendant after observing the defendant commit a traffic violation. The officer who initiated the traffic stop later testified that he recognized the make, model, and license plate of the vehicle, and the physical appearance of the driver, from a "wanted" flyer for a burglary committed two days prior. The first officer called a second officer to the scene, who later testified that he recognized the defendant's face from an "I-card" that had been issued stating that the defendant was wanted for burglary. The first officer took the defendant into police custody, and the second officer stayed with the defendant's vehicle. The second officer retrieved a knapsack from the back seat of the vehicle and, upon opening the knapsack, found a clear plastic bag full of jewelry. The knapsack was later identified by a complainant as having been taken during the burglary of her home. Some of the jewelry recovered from the knapsack was later identified by complainants as property taken during the burglaries of their respective homes.

The defendant moved, inter alia, to suppress the knapsack and the contents of the knapsack as the products of an illegal search. At the suppression hearing, the People and the defendant introduced evidence reflecting differing accounts of how the second officer came to discover the knapsack in the vehicle. The officer testified that he did not notice the knapsack until a female approached him and asked for the bag in the back seat of the vehicle. Two witnesses called by the defendant each testified that they saw the police officers conduct a thorough search of the vehicle after the defendant was in custody, and that the officers discovered the knapsack in the back seat of the vehicle during that search. At the conclusion of the suppression hearing, the People argued, inter alia, that the defendant did not have standing to challenge the recovery of the property, that there was no search because the officer recovered the knapsack in response to a citizen's request for it and the officer was justified in opening the knapsack for safety reasons, and that the knapsack would have been inevitably discovered as part of an inventory search of the vehicle at the police precinct. The Supreme Court determined that the physical evidence was properly recovered pursuant to the automobile exception to the warrant requirement (see People v. Galak , 81 N.Y.2d 463, 467, 600 N.Y.S.2d 185, 616 N.E.2d 842 ; People v. Blasich , 73 N.Y.2d 673, 678, 543 N.Y.S.2d 40, 541 N.E.2d 40 ), a legal theory not expressly argued by the People. The court determined, among other things, that the I-card issued for the defendant's arrest "described the car, described the burglary, and it's quite natural and reasonable to think that any backpack in that car may contain evidence of this burglary." After a jury trial, the defendant was convicted of four counts of criminal possession of stolen property in the fifth degree and five counts of burglary in the second degree.

The defendant appeals, contending, among other things, that the Supreme Court should have granted that branch of his omnibus motion which was to suppress physical evidence. First, the defendant argues that the court improperly based its refusal to suppress the evidence upon a theory not argued by the People. Second, the defendant argues that, in any event, the facts of the case do not support application of the automobile exception to the search warrant requirement. For the reasons set forth herein, we reject the defendant's first contention, and find merit in the second contention.

I. Supreme Court's reliance upon a theory not expressly argued by the People

With respect to the question of whether the Supreme Court erred in relying upon a legal theory not expressly argued by the People, the defendant and the People dispute, in effect, how narrowly to construe this Court's holding in ( People v. Tates, 189 A.D.3d 1088, 1089–1090, 137 N.Y.S.3d 367 ). The defendant contends that the case at bar is factually indistinguishable from and controlled by that case. In Tates , the prosecution argued at the suppression hearing that the gun which the defendant sought to suppress was "properly recovered pursuant to an inventory search" of the defendant's vehicle ( id. at 1089, 137 N.Y.S.3d 367 ). The suppression court rejected this argument, but "nevertheless determined that the police had probable cause to search the [vehicle] for a gun pursuant to the automobile exception to the search warrant requirement, a legal theory that was neither advanced nor relied upon by the prosecution at the suppression hearing" ( id. ). On appeal, this Court reversed on the ground that "the Supreme Court should not have denied the defendant's suppression motion on a theory not argued by the People" ( id. at 1089–1090, 137 N.Y.S.3d 367 ). Here, the defendant contends that, as in Tates , this Court " ‘cannot uphold conduct of the police, and thereby affirm a trial court's denial of suppression of evidence obtained pursuant to such conduct, on a factual theory not argued by the People before the trial court’ " ( id. at 1089, 137 N.Y.S.3d 367, quoting People v. Nieves, 67 N.Y.2d 125, 135–136, 501 N.Y.S.2d 1, 492 N.E.2d 109 ).

The People contend that the Supreme Court's ruling may be affirmed because here, unlike in Tates , the People never "affirmatively conceded" that there was not probable cause to support a search (cf. People v. Tates, 189 A.D.3d at 1089, 137 N.Y.S.3d 367 ), and because the People are not raising a new legal theory for the first time on appeal (cf. People v. Nieves, 67 N.Y.2d at 135–136, 501 N.Y.S.2d 1, 492 N.E.2d 109 ; People v. Geddes–Kelly, 163 A.D.3d 716, 717, 81 N.Y.S.3d 414 ), but rather defending the reasoning of the court which was fully set forth on the record. The People distinguish Tates , and the earlier precedent upon which it is based, on the ground that in each of those cases, at least one of the following two circumstances existed: either the ground argued by the People for affirming the suppression court's determination was being raised for the first time on appeal, or the ground upon which the suppression court based its determination had been expressly disclaimed by the People as a basis for upholding the search as lawful.

We conclude that the People's reading of Tates is the correct one. Numerous cases, both prior to Tates and after, stand for the proposition that the Appellate Division cannot affirm a suppression court's ruling based upon a particular legal theory that was neither argued by the People at the suppression hearing nor discussed or relied upon by the suppression court in making its determination (see e.g. People v. Nieves, 67 N.Y.2d at 135–136, 501 N.Y.S.2d 1, 492 N.E.2d 109 ; People v. Dodt, 61 N.Y.2d 408, 416, 474 N.Y.S.2d 441, 462 N.E.2d 1159 ; People v. Benbow, 193 A.D.3d 869, 872–873, 145 N.Y.S.3d 584 ; People v. Geddes–Kelly, 163 A.D.3d at 717, 81 N.Y.S.3d 414 ; People v. Thompson, 118 A.D.3d 922, 924, 988 N.Y.S.2d 209 ; People v. Vargas, 89 A.D.3d 771, 772, 931 N.Y.S.2d 683 ). It is also well established that CPL 470.15(1) "precludes the Appellate Division from reviewing an issue that was either decided in an appellant's favor or was not decided by the trial court" ( People v. Ingram, 18 N.Y.3d 948, 949, 944 N.Y.S.2d 470, 967 N.E.2d 695 ; see CPL 470.15[1] ; People v. Concepcion, 17 N.Y.3d 192, 195–196, 929 N.Y.S.2d 541, 953 N.E.2d 779 ; People v. LaFontaine, 92 N.Y.2d 470, 473–474, 682 N.Y.S.2d 671, 705 N.E.2d 663 ). In the Court of Appeals precedent cited in Tates , the prosecution had attempted to rely, for the first time on appeal, on a legal theory to support the trial court's evidentiary determination that had not been previously argued by the People or relied upon by the trial court (see People v. Nieves, 67 N.Y.2d at 129–130, 135–136, 501 N.Y.S.2d 1, 492 N.E.2d 109 ; People v. Johnson, 64 N.Y.2d 617, 619 n 2, 485 N.Y.S.2d 33, 474 N.E.2d 241 ).

Tates stands apart from the above cases because it involved reversal of a suppression court's determination where the suppression court itself, and not the Appellate Division, had relied upon a legal theory never argued by the People (see People v. Tates, 189 A.D.3d at 1089, 137 N.Y.S.3d 367 ). In Tates , the People had argued at the suppression hearing that the gun which the defendant sought to suppress was properly recovered from the defendant's vehicle "pursuant to an inventory search" ( id. ). The suppression court rejected the People's argument, but nevertheless determined that the police had probable cause to search the defendant's vehicle "pursuant to the automobile exception to the search warrant requirement, a legal theory that was neither advanced nor relied upon by the prosecution at the suppression hearing" ( id. ). Significantly, however, the prosecutor in Tates was not merely silent on the potential applicability of the automobile exception. The "prosecutor at the suppression hearing [had] affirmatively conceded that the police lacked probable cause either to arrest the defendant for weapon possession at the scene or to search his vehicle for a weapon, and that the People were relying solely on the theory that the gun was recovered pursuant to a lawful inventory search after the [vehicle] was removed from the location" ( id. ).

In Nieves , as in Tates , the theory argued by the People on...