People v El-Khawam (Samer)

[*1] People v El-Khawam (Samer) 2009 NY Slip Op 51387(U) [24 Misc 3d 133(A)] Decided on June 29, 2009 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and NICOLAI, JJ
2008-1448 N CR.

The People of the State of New York, Appellant,

against

Samer El-Khawam, Respondent.

Appeal from an order of the District Court of Nassau County, First District (Norman St. George, J.), dated June 13, 2008. The order, insofar as appealed from as limited by the brief, granted so much of defendant's motion as sought suppression of physical evidence (20 Misc 3d 1103[A], 2008 NY Slip Op 51203[U]).

Order, insofar as appealed from, reversed, on the law, and so much of defendant's motion as sought suppression of physical evidence denied.

Defendant was charged with operating a motor vehicle while impaired by drugs (Vehicle and Traffic Law § 1192 [4]), criminal possession of marihuana in the fifth degree (Penal Law § 221.10 [1]), and driving without insurance (Vehicle and Traffic Law § 319 [1]). At a consolidated suppression hearing, the arresting officer testified that he observed defendant, in his automobile, smoking a pipe and behaving furtively upon becoming aware of the officer's scrutiny. The District Court ruled that the officer had reasonable suspicion that defendant was committing offenses and declined to suppress the evidence as the product of an illegal search and seizure. The court, nevertheless, suppressed, inter alia, the physical evidence, consisting of a pipe containing marihuana residue and a quantity of marihuana, both of which were recovered from defendant's vehicle, on the ground that the People had failed to produce the evidence at the hearing and to offer "chain of custody" proof sufficient to establish the identity and integrity of the evidence. As limited by their brief, the People challenge the suppression of the physical evidence, but raise no issue on this appeal with respect to the court's suppression of several statements made by defendant.

The purpose of a pretrial suppression hearing "is to determine whether suppression should be granted because of an unlawful search and seizure (see, CPL 710.20 [1])" (People v Moore, 185 AD2d 825 [1992]). Upon a challenge to the propriety of official conduct, the [*2]People's burden is to produce evidence of "the legality of the police conduct in the first instance" (People v Berrios, 28 NY2d 361, 367 [1971]; People v Hernandez, 40 AD3d 777, 778 [2007] [same]; see e.g. People v Johnson, 83 NY2d 831, 834 [1994]; People v Washington, 51 NY2d 214, 221-222 [1980]; People v Soler, 53 AD2d 704 [1976]). Suppression may only be granted on the grounds set forth in CPL 710.20 (People v Bridges, 226 AD2d 471 [1996]; People v Sharrieff, 117 AD2d 635, 636-637 [1986]; People v Niemann, 21 Misc 3d 136[A], 2008 NY Slip Op 52221[U] [App Term, 9th and 10th Jud Dists 2008]), and "an insufficient chain of custody" is not one of those grounds (Moore, 185 AD2d at 825; see also People v Brown, 253 AD2d 671, 672 [1998]; cf. People v Doyle, 50 AD3d 1546 [2008]). Moreover, it is normally unnecessary to produce at a suppression hearing the particular physical evidence of which suppression is sought, where, as here, the record is adequate to support a determination as to whether the defendant was subjected to an unconstitutional search and seizure (e.g. People v Munford, 49 AD3d 444, 445-446 [2008]; People v Clarkson, 292 AD2d 207, 208 [2002]; People v Sioba, 187 AD2d 317 [1992]).

Defendant urges that the District Court should have suppressed the physical evidence based on the absence of reasonable suspicion for the initial stop of defendant's vehicle (see e.g. People v May, 81 NY2d 725, 727 [1992]). However, this issue is not properly before this court since an intermediate appellate court may only review errors or defects that "may have adversely affected the appellant" (CPL 470.15 [1]), which language the Court of Appeals has construed to represent "a legislative restriction on the [appellate court's] power to review issues either decided in an appellant's favor, or not ruled upon, by the trial court" (People v LaFontaine, 92 NY2d 470, 474 [1998]; see also People v Romero, 91 NY2d 750, 753-754 [1998]; People v Banks, 42 AD3d 574, 575 [2007]). As the reasonable suspicion ruling was not adverse to the People nor a "necessary component" of the District Court's suppression of the pipe and marihuana upon the People's failure to establish the identity and integrity of that evidence (People v Bell, 9 AD3d 492, 494 [2004]), the propriety of that determination cannot be reviewed on this appeal (see LaFontaine, 92 NY2d 470; People v Karp, 76 NY2d 1006 [1990]; People v Goodfriend, 64 NY2d 695 [1984]; People v Battle, 299 AD2d 555 [2002]; cf. People v Salgado, 27 AD3d 71, 74 [2006]; People v Myers, 303 AD2d 139, 140 [2003]). Consideration of whether the arresting officer had reasonable suspicion that defendant committed an offense "will have to await a possible future appeal by him after sentencing" (Goodfriend, 64 NY2d at 698).

Accordingly, the order, insofar as appealed from, is reversed and so much of defendant's motion as sought suppression of physical evidence is denied.

Rudolph, P.J., Tanenbaum and Nicolai, JJ., concur.
Decision Date: June 29, 2009