People v. Rice

• Decision Date: 17 June 2020
• Docket Number: 2019–01433,Ind. No. 2772/17,2019–01931
• Citation: 125 N.Y.S.3d 728,184 A.D.3d 744
• Parties: The PEOPLE, etc., Respondent, v. Tevon RICE, Appellant.
• Court: New York Supreme Court — Appellate Division

184 A.D.3d 744
125 N.Y.S.3d 728

The PEOPLE, etc., Respondent,
v.
Tevon RICE, Appellant.

2019–01433
2019–01931
Ind. No. 2772/17

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

Argued—January 10, 2020
June 17, 2020

Eric Shapiro Renfroe, Forest Hills, NY, for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Jie Gao, and Sharon Y. Bradt of counsel), for respondent.

WILLIAM F. MASTRO, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeals by the defendant from (1) an order of the Supreme Court, Queens County (Daniel Lewis, J.), dated November 5, 2018, denying those branches of his omnibus motion which were to suppress physical evidence and his statement to law enforcement officials, and (2) a judgment

125 N.Y.S.3d 729

of the same court, rendered January 8, 2019, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the appeal from the order is dismissed; and it is further,

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 his statement to law enforcement officials in accordance herewith, and thereafter a report to this Court advising it of the new determination, and the appeal from the judgment is held in abeyance in the interim. The Supreme Court shall file its report with all convenient speed.

On July 12, 2017, police officers allegedly found a firearm in a backpack in the backyard of a vacant house in Queens. The defendant, whose godmother lived at the adjacent property, was present with seven other people. The defendant and the others were all arrested. At the police precinct, the defendant admitted that the backpack and gun belonged to him.

The defendant was charged in an indictment with, among other things, criminal possession of a weapon in the second degree. In an omnibus motion, he moved, inter alia, to suppress the physical evidence and his statement to the police. In response to the defendant's omnibus motion, the People argued that the officers' conduct was justified under People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562, the defendant abandoned the backpack in the backyard of a vacant house, and he lacked permission to be on that property and, therefore, lacked standing to challenge the legality of the seizure of the physical evidence.

The Supreme Court conducted a suppression hearing, at which the People presented the testimony of the police officers who discovered the backpack, arrested the defendant, and recorded his statement at the precinct. The defendant presented the testimony of his godmother. After the hearing, the defendant argued that the physical evidence and his statement to the police should be suppressed as fruit of the poisonous tree because the officers' warrantless search and seizure was unlawful. The People argued that the defendant lacked standing to...