Opinion
KA 18–01561 456
05-01-2020
The PEOPLE of the State of New York, Respondent, v. Naaron DUNBAR, Defendant–appellant. (Appeal No. 1.)
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted criminal possession of a controlled substance in the third degree (Penal Law
§§ 110.00, 220.16[1] ). In appeal No. 2, defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree (§§ 110.00, 265.03[3] ). Defendant committed the crime in appeal No. 2 while released on bail for the charges underlying appeal No. 1. Even assuming, arguendo, that defendant's waivers of the right to appeal were invalid, we nevertheless reject his challenges to the judgment in each appeal.
Contrary to defendant's contention in appeal No. 1, County Court properly refused to suppress the drugs recovered from his bag at the time of his arrest for menacing. The warrantless search of defendant's bag was permissible "because the bag was within defendant's grabbable area at the time of the arrest and the police reasonably believed that he was armed" given the contemporaneous reports that he had just menanced someone with a handgun ( People v. Jimenez, 22 N.Y.3d 717, 722, 985 N.Y.S.2d 456, 8 N.E.3d 831 [2014] [emphasis added]; see People v. Johnson, 59 N.Y.2d 1014, 1016, 466 N.Y.S.2d 957, 453 N.E.2d 1246 [1983], affg 86 A.D.2d 165, 449 N.Y.S.2d 41 [1st Dept. 1982] ; People v. Wylie, 244 A.D.2d 247, 250–251, 666 N.Y.S.2d 1 [1st Dept. 1997], lv denied 91 N.Y.2d 946, 671 N.Y.S.2d 726, 694 N.E.2d 895 [1998] ; see generally People v. Gokey, 60 N.Y.2d 309, 312–314, 469 N.Y.S.2d 618, 457 N.E.2d 723 [1983] ). Contrary to defendant's assertion, the fact that the bag was no longer within his immediate reach at the time of the search is irrelevant (see People v. Smith, 59 N.Y.2d 454, 459, 465 N.Y.S.2d 896, 452 N.E.2d 1224 [1983] ). Contrary to defendant's further assertion, the fact that neither officer testified that he feared for his safety or that of the public does not control the applicability of the search incident to arrest doctrine (see People v. Bowden, 87 A.D.3d 402, 405, 928 N.Y.S.2d 12 [1st Dept. 2011], appeal dismissed 18 N.Y.3d 980, 944 N.Y.S.2d 753, 967 N.E.2d 1198 [2012] ; People v. Fernandez, 88 A.D.2d 536, 536, 450 N.Y.S.2d 316 [1st Dept. 1982] ). Indeed, it is well established that the "officer need not affirmatively testify to the exigency" when defending the search of a closed container incident to arrest ( People v. Harris, 174 A.D.3d 185, 189, 102 N.Y.S.3d 590 [1st Dept. 2019], lv granted [Sept. 3, 2019] ).
In appeal No. 2, defendant argues that the court erred in imposing the sentence in that case consecutively to the sentence in appeal No. 1. Under Penal Law § 70.25(2–b), a court must impose a consecutive sentence for a crime committed while the defendant was released on bail unless certain mitigating circumstances exist, and defendant contends that such mitigating circumstances exist in this case.
Preliminarily, we note that defendant's argument is actually a claim of legal error by the sentencing court in deeming itself bound by Penal Law § 70.25(2–b) to impose a consecutive sentence in appeal No. 2 (see People v. Diaby, 172 A.D.3d 473, 474, 97 N.Y.S.3d 861 [1st Dept. 2019], lv denied 33 N.Y.3d 1068, 105 N.Y.S.3d 45, 129 N.E.3d 365 [2019] ; see generally People v. Garcia, 84 N.Y.2d 336, 349, 618 N.Y.S.2d 621, 642 N.E.2d 1077 [1994] ). Defendant's argument is not, as he characterizes it, a claim under CPL 470.15(6)(b) that the sentence in appeal No. 2 is unduly harsh or severe. Defendant's argument is therefore subject to the preservation requirement (see People v. Fernandez, 251 A.D.2d 142, 143, 673 N.Y.S.2d 312 [1st Dept. 1998], lv denied 92 N.Y.2d 924, 680 N.Y.S.2d 465, 703 N.E.2d 277 [1998] ; see also People v. Parks, 309 A.D.2d 1172, 1173, 765 N.Y.S.2d 292 [4th Dept. 2003], lv denied 1 N.Y.3d 577, 775 N.Y.S.2d 793, 807 N.E.2d 906 [2003] ), and there is no dispute that the argument is unpreserved. Moreover, granting relief on defendant's unpreserved sentencing argument would frustrate the People's statutory right to "an opportunity to present relevant information to assist the [sentencing] court in making th[e] determination" regarding mitigating circumstances ( Penal Law § 70.25[2–b] ).
In any event, defendant's claim of legal error is without merit. "[T]he sentencing court does not have an independent obligation, in the first instance, to make findings of the presence or absence of mitigating circumstances [under Penal Law § 70.25(2–b) ], and ... if the claim is not raised [at sentencing] then the sentences must be consecutive" ( People v. Hamlet, 227 A.D.2d 203, 204, 642 N.Y.S.2d 254 [1st Dept. 1996], lv denied 88 N.Y.2d 1021, 651 N.Y.S.2d 20, 673 N.E.2d 1247 [1996] [emphasis added] ).
Finally, we note that the uniform sentence and commitment form in appeal No. 2 incorrectly states that defendant was convicted of criminal possession of a weapon in the second degree, and it must be amended to reflect defendant's conviction of attempted criminal possession of a weapon in the second degree (see People v. Facen, 71 A.D.3d 1410, 1411, 897 N.Y.S.2d 347 [4th Dept. 2010], lv denied 15 N.Y.3d 749, 906 N.Y.S.2d 822, 933 N.E.2d 221 [2010], reconsideration denied 15 N.Y.3d 804, 908 N.Y.S.2d 164, 934 N.E.2d 898 [2010] ).