People v. Johnson — 152 A.D.3d 545

Majority

p. 545

The People of the State of New York, Respondent, v Aaron Johnson, Appellant.

[54 NYS3d 869]

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 AD3d 847 [2013]; People v Gil, 109 AD3d 484 , 484-485 [2013]).

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

p. 546

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 US 797 , 804 [1971]; People v Fabian, 126 AD2d 664 [1987]; People v Nimmons, 60 AD2d 129 [1977]).

Dillon, J.P., Hinds-Radix, LaSalle and Connolly, JJ., concur.

Cases cited

People v. Finnegan 112 AD3d 847 N.Y. App. Div. 2013-12-18 p. 545
Hill v. California 401 US 797 SCOTUS 1971-04-05 at 804 p. 546
People v. Fabian 126 AD2d 664 N.Y. App. Div. 1987-01-20 p. 546
People v. Nimmons 60 AD2d 129 N.Y. App. Div. 1977-12-12 p. 546