People v. Theodore

CourtNew York Supreme Court Appellate Division
Citation980 N.Y.S.2d 148,114 A.D.3d 814,2014 N.Y. Slip Op. 01025
PartiesThe PEOPLE, etc., respondent, v. Rashid THEODORE, appellant.
Decision Date13 February 2014

114 A.D.3d 814
980 N.Y.S.2d 148
2014 N.Y. Slip Op. 01025

The PEOPLE, etc., respondent,
v.
Rashid THEODORE, appellant.

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

Feb. 13, 2014.


[980 N.Y.S.2d 149]


John A. Scarpa, Jr., Kew Gardens, N.Y., for appellant.

[980 N.Y.S.2d 150]

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Deborah E. Wassel of counsel), for respondent.


MARK C. DILLON, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, and JEFFREY A. COHEN, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered August 7, 2013, convicting him of criminal possession of a weapon in the second degree (two counts) and criminal possession of marijuana in the fifth degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Paynter, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is reversed, on the law, that branch of the defendant's omnibus motion which was to suppress physical evidence is granted, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent with CPL 160.50.

On September 29, 2011, Detective Gregory Anderson of the 113th Precinct of the New York City Police Department (hereinafter the NYPD) received a radio call directing him to respond to a residential fire at 123–06 Sutphin Boulevard in Jamaica, Queens. The dispatcher advised him that a child had placed the call to the 911 emergency operator, and had reported the location as 123–06 Rockaway Boulevard, but that the firefighters and the police officers from the 106th Precinct who responded to that location did not find a fire. Detective Anderson, along with an NYPD sergeant, responded to 123–06 Sutphin Boulevard, and found neither a residence nor a fire, but only a vacant lot along the entire side of that block where even-numbered addresses would have been situated. Detective Anderson circled the block once or twice, looking for the closest house. Across the street from 123–06 Sutphin Boulevard were four houses, and Detective Anderson determined that 123–09 Sutphin Boulevard was the closest one. He did not see or smell any smoke or fire coming from 123–09 Sutphin Boulevard. Detective Anderson did not ring the doorbell at that house. Instead, he walked along a walkway on the left side of the house for about 30 feet before reaching the rear yard. He made a right turn and walked over to the rear yard. From there, Detective Anderson could see, at the other end of the yard, a car parked at the end of a driveway. The defendant was inside the car, and Detective Anderson approached him. As he neared the vehicle, Detective Anderson saw the defendant holding a cigar-shaped object that turned out to be a cigar with the tobacco removed and marijuana substituted in its place, commonly known as a “blunt.” Detective Anderson directed the defendant to exit the vehicle. Once the defendant did so, Detective Anderson saw a firearm on the driver's seat. He seized the firearm, along with marijuana and marijuana grinding apparatus commonly known as a “crusher” that was also inside the vehicle.

The defendant was charged with two counts of criminal possession of a weapon in the second degree and one count of criminal possession of marijuana in the fifth degree. The defendant moved, inter alia, to suppress the physical evidence, but, after a hearing, the Supreme Court denied that branch of the motion. The defendant later pleaded guilty to the entire indictment, and was sentenced.

A search occurs, thereby triggering the protection of the Fourth Amendment to the United States Constitution and article I, section 12 of the New York

[980 N.Y.S.2d 151]

Constitution, when the police invade an area where a person has a legitimate expectation of privacy ( see People v. Knapp, 52 N.Y.2d 689, 694, 439 N.Y.S.2d 871, 422 N.E.2d 531;United States v. Moran, 349 F.Supp.2d 425, 467). A legitimate expectation of privacy exists where a person has manifested a subjective expectation of privacy that society recognizes as reasonable ( see Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 80 L.Ed.2d 214;Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19...

To continue reading

Request your trial
18 cases
  • People v. Bacquie, 2016-08051, Ind. No. 896/14.
    • United States
    • New York Supreme Court Appellate Division
    • 4 Octubre 2017
    ...evidence to prove the defendant's guilt of the crimes charged, I vote to dismiss the entire indictment (see People v. Theodore, 114 A.D.3d 814, 818, 980 N.Y.S.2d 148...
  • People v. Rice
    • United States
    • New York Supreme Court Appellate Division
    • 13 Abril 2022
    ...1, 5–6, 133 S.Ct. 1409, 185 L.Ed.2d 495 ; People v. Gleeson, 36 N.Y.2d 462, 466, 369 N.Y.S.2d 113, 330 N.E.2d 72 ; People v. Theodore, 114 A.D.3d 814, 816, 980 N.Y.S.2d 148 ). Here, it is undisputed that the police lacked a warrant, and no exception to the warrant requirement applied to the......
  • People v. Panetta, 2015-2601 OR CR
    • United States
    • New York Supreme Court — Appellate Term
    • 13 Diciembre 2018
    ...citation omitted] ). Although a question exists whether the second criterion of Mitchell remains viable (see e.g. People v. Theodore , 114 A.D.3d 814, 817, 980 N.Y.S.2d 148 [2014] ; People v. Rodriguez , 77 A.D.3d at 284, 907 N.Y.S.2d 294 ; People v. Desmarat, 38 A.D.3d 913, 915, 833 N.Y.S.......
  • People v. Larkin, 2015-2860 S CR
    • United States
    • New York Supreme Court — Appellate Term
    • 20 Diciembre 2018
    ..."[t]he People [are] unable to adduce legally sufficient evidence to prove ... defendant's guilt of the crime[ ]" ( People v. Theodore , 114 A.D.3d 814, 818, 980 N.Y.S.2d 148 [2014] ). In light of the foregoing, we need not address defendant's contentions regarding the admissibility of evide......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT