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Second Department Orders New Decision on Suppression Issue

12/26/18

Appellant was charged with, inter alia, two counts of criminal possession of a weapon in the second degree, attempt to evade or defeat taxes on cigarettes, and unlawful possession of unstamped or unlawfully stamped cigarettes.  At the suppression hearing, a police officer testified that he saw appellant, who was standing next to a minivan whose door was open, give another person a carton of cigarettes in exchange for money.  The officer testified that he noticed several duffel bags in the minivan and that one of them was open and contained cigarette cartons with Georgia tax stamps.  The officers arrested appellant.  An officer who was going to drive appellant's minivan to the police station performed a quick "safety" check of the vehicle and found a loaded gun in a closed drawer under the front passanger seat. 

Although the court denied suppression of the gun and the cigarettes, neither its written decision nor its remarks on the record at the close of the hearing explicitly stated its reasons for denying suppression of the gun.  On appeal, appellant argued that the trial court erred in denying suppression of the gun because the inevitable discovery and search incident to lawful arrest exceptions did not apply, and the People responded that the recovery of the gun was justified by the automobile exception.  Observing that it had no power to decide issues "not ruled upon" by the trial court, the Appellate Division, Second Department, held the appeal in abeyance and remitted the case to the Supreme Court, Queens County, for a new determination on the aspect of appellant's omnibus motion that sought suppression of the gun. 

Sean H. Murray of Appellate Advocates briefed and argued the case in the Second Department.