Opinion
897 KA 22-00228
12-23-2022
The PEOPLE of the State of New York, Appellant, v. Floyd HARPER, Defendant-Respondent.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR APPELLANT. ANDREW D. FISKE, BUFFALO, FOR DEFENDANT-RESPONDENT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR APPELLANT.
ANDREW D. FISKE, BUFFALO, FOR DEFENDANT-RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed and the indictment is dismissed.
Memorandum: The People appeal from an order granting that part of defendant's omnibus motion seeking suppression of physical evidence—i.e., a gun—that was recovered from the street along a route driven by defendant before a traffic stop. We affirm.
At the suppression hearing, the testifying officer (officer) stated that he observed a vehicle being driven by defendant commit several Vehicle and Traffic Law violations. While pursuing the vehicle, the officer saw it swerve over to the left side of the road and then return back to the right side of the road, but did not see the vehicle's doors open or observe anything being thrown from the vehicle. Following the traffic stop, two other officers located a gun. The officer testified that the gun was located in the area where the vehicle swerved. However, the officer also testified that he did not know specifically where the gun was found and was not one of the officers who located the gun.
The People contend that County Court should have refused to suppress the gun because defendant abandoned it before any improper police conduct allegedly occurred. We reject that contention. "It is well established that property seized as a result of ... unlawful [police conduct] must be suppressed, unless that property was abandoned" ( People v. Mueses , 132 A.D.3d 1257, 1258, 16 N.Y.S.3d 885 [4th Dept. 2015] ; see People v. Howard , 50 N.Y.2d 583, 592, 430 N.Y.S.2d 578, 408 N.E.2d 908 [1980], cert denied 449 U.S. 1023, 101 S.Ct. 590, 66 L.Ed.2d 484 [1980] ; People v. Jones , 174 A.D.3d 1532, 1534, 105 N.Y.S.3d 252 [4th Dept. 2019], lv denied 34 N.Y.3d 982, 113 N.Y.S.3d 662, 137 N.E.3d 32 [2019] ). "A defendant abandons property when he [or she] voluntarily relinquishes possession in a ‘calculated decision’ in response to police conduct" ( People v. Oliver , 39 A.D.3d 880, 880, 835 N.Y.S.2d 308 [2d Dept. 2007], lv dismissed 9 N.Y.3d 868, 840 N.Y.S.2d 897, 872 N.E.2d 1203 [2007], quoting People v. Ramirez-Portoreal , 88 N.Y.2d 99, 110, 643 N.Y.S.2d 502, 666 N.E.2d 207 [1996] ; see People v. Rainey , 110 A.D.3d 1464, 1466, 972 N.Y.S.2d 782 [4th Dept. 2013] ). On the issue of abandonment, the People have the "burden to demonstrate that defendant's action in discarding the property ... was a voluntary and intentional act constituting a waiver of the legitimate expectation of privacy" ( Ramirez-Portoreal , 88 N.Y.2d at 108, 643 N.Y.S.2d 502, 666 N.E.2d 207 ; see Howard , 50 N.Y.2d at 593, 430 N.Y.S.2d 578, 408 N.E.2d 908 ; see generally Rainey , 110 A.D.3d at 1466, 972 N.Y.S.2d 782 ).
Here, we conclude that the People did not meet their burden of establishing that defendant abandoned the gun (see generally Ramirez-Portoreal , 88 N.Y.2d at 108, 643 N.Y.S.2d 502, 666 N.E.2d 207 ; Oliver , 39 A.D.3d at 880, 835 N.Y.S.2d 308 ; People v. Campbell , 245 A.D.2d 191, 194, 666 N.Y.S.2d 604 [1st Dept. 1997] ). "There is a presumption against the waiver of constitutional rights[, and] ... [t]he proof supporting abandonment should ‘reasonably beget the exclusive inference of ... throwing away’ " ( Howard , 50 N.Y.2d at 593, 430 N.Y.S.2d 578, 408 N.E.2d 908 ). At the suppression hearing, the People adduced no evidence directly connecting defendant to the gun found on the street. Although, as noted, the officer testified that he saw defendant's vehicle swerve near the area where the gun was purportedly recovered, he also testified that, while following defendant's vehicle, he never saw its doors open and never saw anything ejected from inside the vehicle. In short, there was no testimony establishing that defendant actually discarded the gun from the vehicle, let alone evidence that " ‘reasonably beget[s] the exclusive inference’ " that defendant threw away the gun ( id. ; cf. People v. Davis , 199 A.D.3d 1331, 1332, 158 N.Y.S.3d 436 [4th Dept. 2021], lv denied 38 N.Y.3d 926, 164 N.Y.S.3d 19, 184 N.E.3d 840 [2022] ).