People v. Rice
| Decision Date | 13 April 2022 |
| Docket Number | 2019–01931,Ind. No. 2772/17 |
| Citation | 204 A.D.3d 834,166 N.Y.S.3d 57 |
| Parties | The PEOPLE, etc., respondent, v. Tevon RICE, appellant. |
| Court | New York Supreme Court — Appellate Division |
204 A.D.3d 834
166 N.Y.S.3d 57
The PEOPLE, etc., respondent,
v.
Tevon RICE, appellant.
2019–01931
Ind. No. 2772/17
Supreme Court, Appellate Division, Second Department, New York.
Argued—January 10, 2020
April 13, 2022
Eric Shapiro Renfroe, Forest Hills, NY, for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Jie Gao, and Sharon Y. Brodt of counsel), for respondent.
COLLEEN D. DUFFY, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Daniel Lewis, J.), rendered January 8, 2019, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statement to law enforcement officials. By decision and order of this Court dated June 17, 2020, the matter was 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, and thereafter a report to this Court advising of the new determination. The appeal was held in abeyance pending receipt of the Supreme Court's report (see People v. Rice, 184 A.D.3d 744, 125 N.Y.S.3d 728 ). The Supreme Court has now filed its report, dated August 13, 2021. Justice Duffy has been substituted for former Justice Mastro (see 22 NYCRR 1250.1 [b])
ORDERED that the judgment is affirmed.
On July 12, 2017, police officers allegedly found a firearm in a backpack in the backyard of a vacant house in Queens. The defendant was arrested along with seven other people who were present at the scene. At the police stationhouse, the defendant stated that the backpack and the gun belonged to him. He was charged in an indictment with, among other things, criminal possession of a weapon in the second degree and criminal trespass in the third degree. The defendant moved, inter alia, to suppress the physical evidence and his statement to the police as the products of unlawful police conduct. 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.
At the suppression hearing, two police officers testified that,
while on patrol, they drove by a vacant house, with which they were familiar, that was boarded up, with a padlock and chain on the front door, and "No Trespassing" signs posted. Upon noticing a group of men in the backyard, the officers stopped and exited their vehicle. From the foot of the driveway, the officers observed the individuals passing a brown cigarette back and forth, a cloud of smoke, and the smell of marijuana. As they approached the backyard by walking up the driveway, through an open gate in a fence, the officers observed the defendant walk toward the back of the vacant house with an object in his hand and return to the group empty-handed.
The officers further testified that as they approached the group, they asked the individuals for identification, and asked whether any of them lived at the house. Someone said that they "were just smoking weed." One officer noticed a backpack on the side of the house in the area where he had seen the defendant walk upon their approach. The officer retrieved the backpack and asked if it belonged to anyone. When nobody replied, the officer opened the backpack and observed a firearm inside. The defendant, along with the others, was arrested. After the men were handcuffed, a woman from the house next door, which shared a driveway with the subject house, came outside and said that she knew one of the men present. The owner of the property arrived and told the
officers that he did not know any of the men, they did not belong in the backyard, and he had placed the "No Trespassing" signs on the property because he did not want anyone in the backyard. At the suppression hearing, the neighbor testified for the defense that the defendant had her permission to be in her driveway, which was shared with the vacant house next door, and to be in her backyard.
At the conclusion of the suppression hearing, the Supreme Court denied suppression of the physical evidence and the defendant's statement to the police. Thereafter, the defendant pleaded guilty to criminal possession of a weapon in the second degree, and was sentenced in accordance with the plea agreement. On appeal, the defendant challenges the denial of those branches of his omnibus motion which were to suppress the physical evidence and his statement to the police. As the Supreme Court did not set forth the basis for its denial of those branches of the defendant's omnibus motion, this Court was unable to determine the unarticulated predicate for the Supreme Court's evidentiary ruling (see People v. Nicholson, 26 N.Y.3d 813, 817, 28 N.Y.S.3d 663, 48 N.E.3d 944 ). In order to avoid exceeding our statutory authority pursuant to CPL 470.15(1), we held the appeal
in abeyance and remitted the matter to the Supreme Court, Queens County, for a new determination. The Supreme Court has filed its report, dated August 13, 2021, denying the subject branch of the defendant's omnibus motion.
On appeal, the defendant first contends that the physical evidence and his statement to the police should be suppressed on the ground that the police acted illegally when they entered the curtilage of the house without a warrant or circumstances justifying the warrantless entry. When a police officer physically intrudes on the curtilage of a house in order to obtain information, a search has occurred within the...
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