People v Francis (Lenworth)

[*1] People v Francis (Lenworth) 2007 NY Slip Op 50714(U) [15 Misc 3d 133(A)] Decided on April 4, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 4, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2005-267 Q CR.

The People of the State of New York, Respondent,

against

Lenworth Francis, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Joseph A. Zayas, J.), rendered January 21, 2005. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the fourth degree and harassment in the second degree.

Judgment of conviction affirmed.

Defendant's sole contention on appeal, that the court below abused its discretion in allowing the People to reopen the suppression hearing held to determine, inter alia, whether a knife seized from defendant's person should be suppressed, is not preserved for appellate review since defendant failed to object to the proceeding below (CPL
470.05 [2]). In any event, there was no abuse of discretion. Before the court rendered its determination on the motion, defense counsel, at oral argument, introduced what was, apparently, a new theory of suppression, that the security employee was a state actor for purposes of Fourth Amendment proscriptions (People v Jones, 47 NY2d 528, 533 [1979]; People v Martin, 240 AD2d 434, 434-435 [1997]; People v Collado, 7 Misc 3d 35, 36 [App Term, 2d & 11th Jud Dists 2005]; see People v Horman, 22 NY2d 378, 381 [1968]). A criminal court has broad discretion "to alter the order of the proceedings up until the time the case is submitted to the jury, and its determinations in that regard will not be reviewed absent an abuse of discretion" (People v Duplessis, 16 AD3d 846, 847 [2005]; see e.g. People v Whipple, 97 NY2d 1, 6 [2001]; People v Harris, 57 NY2d 335, 345-346 [1982]; People v Thomas, 33 AD3d 1053, 1055 [2006]). [*2]The court below ordered the hearing reopened before it had rendered its decision thereon (e.g. People v Boone, 30 AD3d 535 [2006]; People v Suphal, 7 AD3d 547 [2004]; People v Johnson, 7 AD3d 732, 733 [2004]; People v Soto, 280 AD2d 621, 622 [2001]; People v Torres, 257 AD2d 672 [1999]; compare People v Havelka, 45 NY2d 636, 643-644 [1978] with People v Widgeon, 303 AD2d 330 [2003]). Such an order is appropriate where, as here, the People were denied a full opportunity to rebut a theory of suppression not
asserted before they rested (People v Lathrop, 127 AD2d 1003, 1004 [1987]; People v Hernandez, 124 AD2d 893 [1986]; People v Dawson, 115 AD2d 611, 612 [1985]).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 4, 2007