People v. Chazbani

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lopresto, J.), rendered April 20, 2015, convicting him of criminal possession of a weapon in the third degree, after a nonjury trial, and imposing sentence. The appeal brings up for review the denial, after a hearing (Paynter, J.), of those branches of the defendant’s omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.

Ordered that the matter is remitted to the Supreme Court, Queens County, for a new determination of those branches of the defendant’s omnibus motion which were to suppress physical evidence and statements to law enforcement officials in accordance herewith, and thereafter a report to this Court advising of the new determination, and the appeal is held in abeyance in the interim. The Supreme Court shall file its report with all convenient speed.

Initially, contrary to the defendant’s contention, the Supreme Court properly denied his motion to dismiss the indictment pursuant to CPL 30.30. The People satisfied their burden of showing that an adjournment from July 14, 2011, to August 11, 2011, was consensual by submitting the waiver of speedy trial rights signed by defense counsel (see People v Benard, 69 AD3d 952 , 953 [2010]; People v Mena, 29 AD3d 349 , 350 [2006]; cf. People v Rivas, 78 AD3d 739 , 739-740 [2010]).

The Supreme Court erred in determining that the defendant did not have standing to challenge the search. The court found that the defendant lacked standing because “any information that the defendant was involved with this car or connected with this car was based upon statements made by unnamed individuals that the defendant had been driving this vehicle.” However, this finding is contradicted by the record. The police officer testified at the suppression hearing that the defendant himself asserted that he owned the minivan. Inasmuch as no contrary proof was presented, this evidence was sufficient to establish the defendant’s standing to challenge the search of the vehicle (see People v Gonzalez, 68 NY2d 950 , 951 [1986]; cf. People v Sanchez, 64 AD3d 618 , 619 [2009]).

As a result of its erroneous conclusion, the Supreme Court did not consider the merits of the People’s contention that suppression should be denied because the police officer had probable cause to search the minivan. On appeal, the People argue that the existence of such probable cause provides an alternative basis for upholding the ruling on the suppression motion and affirming the judgment of conviction. However, because

In People v LaFontaine, the Court of Appeals explained that the Appellate Division is statutorily limited to reviewing errors or defects that “may have adversely affected the appellant” (CPL 470.15 [1]), and thus the Court has no power “to review issues either decided in an appellant’s favor, or not ruled upon, by the trial court” (People v LaFontaine, 92 NY2d at 474 ). The Court of Appeals observed that, once the Appellate Division has rejected a trial court’s ruling on a particular issue, it may not proceed to consider other issues that might provide a basis for affirmance if they were not determined adversely to the appellant. Rather, the Appellate Division is “left with little alternative but to reverse the denial of suppression and remit the case to Supreme Court for further proceedings. In these unusual circumstances, the People might be able to seek reexamination of the alternative suppression justifications that have been part of this case since its onset, either before the nisi prius court on the remittal or, depending on the nature and configuration of eventual new rulings there, on an ensuing appeal” (id. at 474-475). The Court of Appeals, however, did not specify what “further proceedings” should transpire upon remit-tal of the matter to the Supreme Court. At the conclusion of the LaFontaine decision, the Court simply stated: “Accordingly, the order of the Appellate Division should be reversed, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion” (id. at 476; see People v Ingram, 18 NY3d at 949 [reversing Appellate Division order and remitting matter to the Supreme Court “for further proceedings in accordance with this memorandum”]; People v Concepcion, 17 NY3d at 201 [modifying Appellate Division order “by remitting to Supreme Court for further proceedings in accordance with this opinion”]).

In remitting cases for “further proceedings” where the trial court has erred in denying a defendant’s motion to suppress evidence and CPL 470.15 (1) precludes reaching an alternative ground for affirmance raised by the People on appeal, the intermediate appellate courts of this State have employed a variety of corrective measures. In some cases, the Appellate Division has reversed or modified the judgment of conviction and granted the suppression motion, thereupon dismissing the

This Court has deemed it appropriate to reverse or modify the judgment of conviction, rather than holding the appeal in abeyance, where no purpose would be served by holding the appeal and directing that a new determination be made. This is the case, for example, where a determination of the alternative issue would not change the ultimate determination of the suppression motion (see People v Scott, 133 AD3d at 798 ), or where the trial court has already determined the alternative issue in the defendant’s favor, in which case the issue would, in all likelihood, be decided in the defendant’s favor again, and thus would remain unreviewable after remittal (see People v Thompson, 118 AD3d at 923, 925 ). However, where, as here, the alternative issue raised by the People on appeal has not been determined by the trial court, and the resolution of that issue could affect the determination of the suppression motion, we deem it appropriate to hold the defendant’s appeal in abeyance and remit the matter for consideration of the alternative issue.

Accordingly, under the circumstances of this case, we hold

Leventhal, J.P., Sgroi, Hinds-Radix and Maltese, JJ., concur.