Opinion
07-05-2017
The PEOPLE, etc., respondent, v. Aaron JOHNSON, appellant.
Kenyon C. Trachte, Newburgh, NY, for appellant. David M. Hoovler, District Attorney, Middletown, NY (Robert H. Middlemiss of counsel), for respondent.
Kenyon C. Trachte, Newburgh, NY, for appellant.
David M. Hoovler, District Attorney, Middletown, NY (Robert H. Middlemiss of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered December 12, 2014, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the defendant's purported waiver of his right to appeal was invalid (see People v. Finnegan, 112 A.D.3d 847, 976 N.Y.S.2d 231 ; People v. Gil, 109 A.D.3d 484, 484–485, 970 N.Y.S.2d 88 ).
The defendant contends that the County Court should have suppressed a firearm recovered during a search of his person incident to his arrest. However, the proof at the suppression hearing established that when the arresting officer arrested the defendant, he reasonably confused the defendant for his brother, who was the subject of an outstanding arrest warrant. Under these circumstances, the defendant is not entitled to suppression of the firearm recovered during the search of his person (see Hill v. California, 401 U.S. 797, 804, 91 S.Ct. 1106, 28 L.Ed.2d 484 ; People v. Fabian, 126 A.D.2d 664, 511 N.Y.S.2d 92 ; People v. Nimmons, 60 A.D.2d 129, 399 N.Y.S.2d 900 ).
DILLON, J.P., HINDS–RADIX, LaSALLE and CONNOLLY, JJ., concur.