Opinion
No. 11–435.
08-22-2014
The PEOPLE of the State of New York, Respondent, v. Nelson MIRANDA, Defendant–Appellant.
Opinion
Judgments of conviction (Rita M. Mella, J.), rendered March 4, 2011, affirmed.
Defendant's suppression motion was properly denied. The police lawfully searched defendant's backpack as incident to what defendant concedes was a lawful arrest (see People v. Smith, 59 N.Y.2d 454 [1983];Matter of Freddy S., 84 AD3d 687, 688 [2011];cf. People v. Jimenez, 22 NY3d 717 [2014];People v. Febres, 118 AD3d 489, 2014 N.Y. Slip Op 04150 [1st Dept 2014] ). The arrest and search were contemporaneous, the backpack was large enough to contain a weapon and was within defendant's grabbable area at the time of his arrest soon after police saw him discarding a hacksaw, and the surrounding circumstance supported the reasonableness of the testifying officer's stated fear for his safety.
Defendant's present challenge to the legal sufficiency of the evidence supporting his conviction of attempted petit larceny is unpreserved for appellate review, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. Defendant's demonstrated conduct—including his failed efforts to use the hacksaw to cut open the locks attached to three bicycles separately chained to a fence, while at the same time carrying burglar's tools in his backpack—was sufficient to support a finding that defendant intended and came dangerously close to stealing the bicycles (see People v. Warren, 66 N.Y.2d 831, 832 [1985];People v. Hissin, 267 A.D.2d 599 [1999],lv denied 94 N.Y.2d 921 [2000];cf. People v. Brugman, 36 Misc.3d 147[A], 2013 N.Y. Slip Op 50357[U][App Term, 1st Dept 2013] ).
We have considered and rejected defendant's jurisdictional point.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur.