People v Green

People v Green 2012 NY Slip Op 04085 Decided on May 24, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 24, 2012
Saxe, J.P., Sweeny, Moskowitz, Freedman, Manzanet-Daniels, JJ.
7524 3648/10

[*1]The People of the State of New York, Appellant,

v

Calvin Green, Defendant-Respondent.




Robert T. Johnson, District Attorney, Bronx (Stanley R. Kaplan
of counsel), for appellant.

Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered on or about June 3, 2011, which granted defendant's motion to suppress physical evidence, unanimously reversed, on the law and the facts, the motion denied and the matter remitted for further proceedings.

The testimony credited by the hearing court established that defendant gave the police implicit consent to search his bag. In the presence of officers who were conducting an investigation, defendant's mother called defendant into the living room and asked him if it was true that he was keeping firearms in the apartment. Defendant admitted that this was true, and that the weapons were in his bedroom. Defendant took an officer into his bedroom, pulled out a bag and placed it on top of his bed. The officer then opened it and found the weapons.

The only reasonable interpretation of defendant's course of conduct was that he was voluntarily surrendering the bag to the police, or at least offering it up for inspection. This was an implied consent to look inside the bag and confirm the presence of the weapons that defendant had already admitted possessing (see People v Smith, 239 AD2d 219 [1997], lv denied 90 NY2d 911 [1997]; United States v Reynolds, 646 F3d 63, 73 [1st Cir 2011]).

In light of the foregoing, we do not reach the People's alternate contention.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 24, 2012

CLERK