People v Hawkins

People v Hawkins 2015 NY Slip Op 05775 Decided on July 2, 2015 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 July 2, 2015
Mazzarelli, J.P., Friedman, Richter, Manzanet-Daniels, Gische, JJ.
15578 1633/07

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

v

Brian Hawkins, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Steven Berko of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Sabrina Margret Bierer of counsel), for respondent.

Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered November 14, 2007, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree, and sentencing him to a term of 3½ years, unanimously affirmed.

The court properly denied defendant's suppression motion. Defendant argued only that the pistol found in the trunk of his car should be suppressed as the fruit of an unlawful arrest, and that claim was without merit because he was at the very least lawfully arrested for driving with a suspended license. Defendant failed to argue, as he does on appeal, that the search of the car was not a lawful search incident to arrest or a lawful

search under the automobile exception (see Arizona v Gant, 556 US 332 [2009]). As a result, the People were never placed on notice of any need to develop the record as to these issues, or to otherwise establish the validity of the search, including by presenting evidence that defendant may have consented to the search (see People v Martin, 50 NY2d 1029 [1980]; People v Tutt, 38 NY2d 1011 [1976]; People v Jiminez, 109 AD3d 764 [1st Dept 2013].

While the prosecutor and court briefly alluded to the search of the car, the court specifically noted that defendant had focused on the issue of probable cause for the arrest, and that as a result, the record regarding the circumstances of the search had not been fully developed. Thus, the court did not "expressly decide[ ]" the issue "in response to a protest by a party" (CPL 470.05[2]; see also Jiminez, 109 AD3d at 764; People v Perkins, 68 AD3d 494, 495 [1st Dept 2009], lv denied 14 NY3d 891 [2010]). If anything, the court expressly declined to decide the issues defendant raises for the first time on appeal. Accordingly, we

find that defendant did not preserve his present claims, and given the limited record presented here, we decline to review them in the interest of justice.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 2, 2015

CLERK