People v Kelly

People v Kelly 2015 NY Slip Op 07332 Decided on October 8, 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 October 8, 2015
Friedman, J.P., Andrias, Saxe, Gische, Kapnick, JJ.
15811 2822/12

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

v

James Kelly, Defendant-Appellant.

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

Robert T. Johnson, District Attorney, Bronx (Melanie A. Sarver of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Barbara F. Newman, J.), rendered on February 14, 2013, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree, and sentencing him to a term of 3½ years, unanimously affirmed.

Defendant's suppression motion was properly denied. The totality of circumstances supports the court's finding of abandonment (see People v Murray , 256 AD2d 116 [1st Dept 1998], lv denied 92 NY2d 1052 [1999]). The police had information that a man meeting defendant's description had a firearm in a black bag. As the police arrived at the scene, defendant looked at the uniformed officers, turned and walked into a store, where he immediately placed the black bag he was carrying on a countertop and then turned and walked away from it toward the store's exit, leaving his bag visible and unattended in a publicly accessible area. These circumstances supported the inference that defendant intended to divest himself of the bag in order to avoid being caught in possession of the pistol contained in the bag and ultimately found by the police. Accordingly, defendant gave up his expectation of privacy in the bag.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 8, 2015

CLERK