People v Miranda (Nelson)

[*1] People v Miranda (Nelson) 2014 NY Slip Op 51289(U) Decided on August 22, 2014 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 22, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan, JJ.
11-435

The People of the State of New York, Respondent,

against

Nelson Miranda, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Rita M. Mella, J.), rendered March 4, 2011, after a nonjury trial, convicting him of attempted possession of burglar's tools (six counts) and petit larceny (three counts), and imposing sentence.

Per Curiam.

Judgments of conviction (Rita M. Mella, J.), rendered March 4, 2011, affirmed.

Defendant's suppression motion was properly denied. The police lawfully searched defendant's backpack as incident to what defendant concedes was a lawful arrest (see People v Smith, 59 NY2d 454 [1983]; Matter of Freddy S., 84 AD3d 687, 688 [2011]; cf. People v Jimenez, 22 NY3d 717 [2014]; People v Febres, ___ AD3d ___, 2014 NY Slip Op 04150 [1st Dept 2014]). The arrest and search were contemporaneous, the backpack was large enough to contain a weapon and was within defendant's grabbable area at the time of his arrest soon after police saw him discarding a hacksaw, and the surrounding circumstance supported the reasonableness of the testifying officer's stated fear for his safety.

Defendant's present challenge to the legal sufficiency of the evidence supporting his conviction of attempted petit larceny is unpreserved for appellate review, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. Defendant's demonstrated conduct — including his failed efforts to use the hacksaw to cut open the locks attached to three bicycles separately chained to a fence, while at the same time carrying burglar's tools in his backpack — was sufficient to support a finding that defendant intended and came dangerously close to stealing the bicycles (see People v Warren, 66 NY2d 831, 832 [1985]; People v Hissin, 267 AD2d 599 [1999], lv denied 94 NY2d 921 [2000]; cf. People v Brugman, 36 Misc 3d 147[A], 2013 NY Slip Op 50357[U][App Term, 1st Dept 2013]).

We have considered and rejected defendant's jurisdictional point.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concurI concur
Decision Date: August 22, 2014