ROSE, TROY, PEOPLE v

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

667 KA 12-02260 PRESENT: SMITH, J.P., CENTRA, PERADOTTO, SCONIERS, AND WHALEN, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

TROY ROSE, DEFENDANT-APPELLANT.

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered April 30, 2012. The judgment convicted defendant, upon a nonjury verdict, of criminal possession of a weapon in the second degree.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him following a nonjury trial of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). We conclude that County Court properly refused to suppress defendant’s statement to the arresting officers, which was made without Miranda warnings. The officers’ question concerning the location of the gun did not constitute interrogation (see People v Chestnut, 51 NY2d 14, 22-23, cert denied 449 US 1018; People v Roseboro, 124 AD3d 1374, 1375) and moreover, the public safety exception to the Miranda rule applied to that question (see People v Gucla, 18 AD3d 478, 479, lv denied 5 NY3d 789).

We further conclude that the court properly refused to suppress the gun seized from defendant’s backpack during a search incident to defendant’s lawful arrest (see People v Smith, 59 NY2d 454, 458-459; People v Johnson, 86 AD2d 165, 166-167, affd 59 NY2d 1014). Here, “the circumstances leading to the arrest support a reasonable belief that the suspect may [have been able to] gain possession of a weapon” (People v Gokey, 60 NY2d 309, 311; see People v Capellan, 38 AD3d 393, 394, lv denied 9 NY3d 873; see generally People v Wylie, 244 AD2d 247, 250-251, lv denied 91 NY2d 946), including defendant’s statement that the gun was in his backpack (see People v Alvarado, 126 AD3d 803, 804- 805).

Contrary to defendant’s contention, the court properly curtailed

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his cross-examination of one of the officers at the suppression hearing with respect to a confidential informant. Defendant was arrested pursuant to a warrant, and the existence or reliability of a confidential informant who allegedly provided information concerning defendant’s location “had nothing to do with the legality of the [arrest or] search and it was, therefore, irrelevant” (People v Lourdes, 175 AD2d 958, 958; see People v Alfone, 206 AD2d 775, 776, lv denied 84 NY2d 1028). Inasmuch as a motion to reopen the suppression hearing would not have been successful, defendant was not denied effective assistance of counsel based upon counsel’s failure to make such a motion (see People v Crespo, 117 AD3d 1538, 1539, lv denied 23 NY3d 1035).

Finally, the sentence is not unduly harsh or severe.

Entered: June 19, 2015 Frances E. Cafarell Clerk of the Court