People v Lewis

People v Lewis 2021 NY Slip Op 03422 Decided on June 01, 2021 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 and Entered: June 01, 2021
Before: Kern, J.P., Moulton, González, Scarpulla, JJ.
Ind No. 1100/16 1100/16 Appeal No. 13983 Case No. 2018-1665

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

v

Michael Lewis, Defendant-Appellant.

Caprice R. Jenerson, Office of the Appellate Defender, New York (Katrina Jean Myers of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Valerie Figueredo of counsel), for respondent.

Judgment, Supreme Court, New York County (Arlene D. Goldberg, J. at suppression hearing; A. Kirke Bartley, Jr., J. at jury trial), rendered July 18, 2017, as amended September 15, 2017, convicting defendant of 17 counts of criminal possession of a forged instrument in the first degree, and sentencing him, as a second felony offender, to 17 concurrent terms of four to eight years, unanimously reversed, on the law and the facts, defendant's motion to suppress physical evidence granted, and the indictment dismissed.

When the arresting officer removed a small manila envelope from defendant's pocket in a search incident to arrest, and opened it enough to "peek" inside," this constituted a search of a closed container. To the extent the envelope could be viewed as partly open, its contents were not in plain view, and were not visible until the officer opened the envelope. In the absence of exigent circumstances, the officer was not authorized to open the container to make its contents visible (see People v Hendricks, 43 AD3d 361 [1st Dept 2007]). We have considered and rejected the People's remaining arguments, including those relating to preservation.

In light of this determination, we find it unnecessary to address any other issues.THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: June 1, 2021