The People, Respondent,v.Josefina Jimenez, Appellant.BriefN.Y.January 15, 2014 To be argued by NOAH J. CHAMOY (15 minutes) _______________________________________________________ COURT OF APPEALS State of New York _______________________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - JOSEFINA JIMENEZ, Defendant-Appellant. _______________________________________________________ R E S P O N D E N T’ S B R I E F _______________________________________________________ ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent Bronx, New York 10451 (718) 838-7142 (f) (718) 590-6523 JOSEPH N. FERDENZI NANCY D. KILLIAN NOAH J. CHAMOY Assistant District Attorneys of Counsel _______________________________________________________ Date Completed: June 19, 2013 ii TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................. iv STATEMENT ........................................................................................................................ 1 QUESTIONS PRESENTED .............................................................................................. 3 THE FACTS The Indictment ............................................................................................................ 4 The Hearing The People's Case ............................................................................................ 4 The Defense Case ............................................................................................ 6 The Legal Argument ....................................................................................... 6 The Decision .................................................................................................... 7 The Jury Selection ....................................................................................................... 8 The Trial The People's Case .......................................................................................... 12 The Mid-Trial Application to Reopen the Hearing .................................. 15 The Defense Case .......................................................................................... 16 The Sentence ............................................................................................................. 16 The Appeal................................................................................................................. 16 iii ARGUMENT POINT ONE THE NISI PRIUS COURT PROVIDENTLY FOUND THE SEARCH OF DEFENDANT’S PURSE, INCIDENT TO HER ARREST, LAWFUL ............................................................................................ 18 (A) The Legality Of The Search Of Defendant’s Purse Presents A Mixed Question Of Law And Fact Beyond This Court’s Jurisdiction ..................................................... 19 (B) The Trial Court Did Not Abuse Its Discretion As A Matter Of Law In Declining To Reopen The Suppression Hearing. ......................................................................... 36 POINT TWO THE TRIAL COURT DID NOT ABUSE ITS DISCRETION AS A MATTER OF LAW IN DENYING DEFENDANT’S FOR-CAUSE CHALLENGES OF PROSPECTIVE JURORS ..................................................... 49 CONCLUSION ................................................................................................................... 58 iv TABLE OF AUTHORITIES FEDERAL CASES Page Arizona v. Gant, 556 U.S. 332 (2009) ............................................................................passim Chimel v. California, 395 U.S. 752 (1969) ......................................................... 21,26-27,40 Davis v. United States, 131 S.Ct. 2419 (2011) .................................................................. 25 Dunaway v. New York, 442 U.S. 200 (1979) ...................................................................... 4 Mapp v. Ohio, 367 U.S. 643 (1961) ..................................................................................... 4 New York v. Belton, 453 U.S. 454 (1981) ......................................................................... 21 Peters v. New York, 392 U.S. 40 (1968) ............................................................................ 33 United States v. Brewer, 624 F.3d 900 (8th Cir. 2010) .................................................... 24 United States v. Chadwick, 433 U.S. 1 (1977) ................................................................... 41 United States v. Robinson, 414 U.S. 218 (1973) ............................................................... 24 United States v. Sanders, 994 F.2d 200 (5th Cir. 1993) ................................................... 41 United States v. Whitehorn, 829 F.2d 1225 (2d Cir.1987), cert. denied, 487 U.S. 1237 (1988) ................................................................................ 27 STATE CASES Page People v. Abrew, 95 N.Y.2d 806 (2000) ............................................................................ 46 People v. Archer, 210 A.D.2d 241 (2d Dept. 1994) ......................................................... 58 People v. Arnold, 96 N.Y.2d 358 (2001) ...................................................................... 50,51 People v. Batista, 88 N.Y.2d 650 (1996) ............................................................................ 20 v People v. Belton, 50 N.Y.2d 447 (1980) ........................................................ 21,23,30,31,42 People v. Belton, 55 N.Y.2d 49 (1982) .............................................................................. 21 People v. Berrios, 28 N.Y.2d 361 (1971) ........................................................................... 44 People v. Bigelow, 66 N.Y.2d 417 (1985).......................................................................... 25 People v. Bludson, 97 N.Y.2d 644 (2001) ......................................................................... 51 People v. Blyden, 55 N.Y.2d 73 (1982) .............................................................................. 51 People v. Bowden, 87 A.D.3d 402 (1st Dept. 2011), app. dismissed 18 N.Y.3d 980 (2012) ................................................................. 20,31,34 People v. Burgos, 81 A.D.3d 558 (1st Dept. 2011) .......................................................... 31 People v. Burts, 237 A.D.2d 155 (1st Dept. 1997) ...................................................... 57-58 People v. Chambers, 97 N.Y.2d 417 (2002) ...................................................................... 51 People v. Chestnut, 51 N.Y.2d 14 (1980) .......................................................................... 20 People v. Clark, 88 N.Y.2d 552 (1996) .................................................................... 36,37,44 People v. Clinkscales, 83 A.D.3d 1109 (3d Dept. 2011) .................................................. 33 People v. Cloud, 79 N.Y.2d 786 (1991) ............................................................................. 20 People v. Davis, 64 N.Y.2d 1143 (1985) ........................................................................... 20 People v. De Santis, 46 N.Y.2d 82 (1978), cert. denied De Santis v. New York, 443 U.S. 912 (1979) .......................... 23,27,28,31 People v. DeBour, 40 N.Y.2d 210 (1976) ...................................................................... 7,44 People v. Delamota, 18 N.Y.3d 107 (2011) ...................................................................... 46 People v. Dodt, 61 N.Y.2d 408 (1984) .............................................................................. 46 People v. Echevarria, 6 N.Y.3d 89 (2005) ......................................................................... 24 vi People v. Estrella, 288 A.D.2d 133 (1st Dept. 2001) .................................................. 31,40 People v. Eutsey, 290 A.D.2d 396 (1st Dept. 2002) ........................................................ 54 People v. Evans, 43 N.Y.2d 160 (1977) ............................................................................. 33 People v. Evans, 84 A.D.3d 573 (1st Dept. 2011) ........................................................... 34 People v. Fuentes, 53 N.Y.2d 892 (1981) .......................................................................... 37 People v. Giles, 73 N.Y.2d 666 (1989)..................................................................... 46,47,48 People v. Gokey, 60 N.Y.2d 309 (1983) .......................................................................passim People v. Gonzalez, 216 A.D.2d 412 (2d Dept. 1995) .................................................... 54 People v. Gonzalez, 55 N.Y.2d 720 (1981), cert. denied Gonzalez v. New York, 456 U.S. 1010 (1982) ....................................... 46 People v. Greenidge, 91 N.Y.2d 967 (1998) ..................................................................... 20 People v. Guzman, 76 N.Y.2d 1 (1990 .............................................................................. 51 People v. Hall, 10 N.Y.3d 303 (2008) ................................................................................ 27 People v. Harrison, 57 N.Y.2d 470 (1982) ................................................................... 20,35 People v. Hendricks, 43 A.D.3d 361 (1st Dept. 2007) ............................................... 23,34 People v. Jimenez, 98 A.D.3d 886 (1st Dept. 2012) ...................................................passim People v. Johnson, 17 N.Y.3d 752 (2011) ......................................................................... 55 People v. Johnson, 59 N.Y.2d 1014 (1983) .................................................................. 22,31 People v. Johnson, 86 A.D.2d 165 (1st Dept. 1982) ......................................... 26,39,40,41 People v. Johnson, 94 N.Y.2d 600 (2000) ..................................................... 50,51,52,54,56 People v. Kinchen, 60 N.Y.2d 772 (1983) ......................................................................... 46 vii People v. Knowles, 12 A.D.3d 939 (3d Dept. 2004)........................................................ 37 People v. Langen, 60 N.Y.2d 170 (1983) ...................................................................... 22,30 People v. Lewis, 5 N.Y.3d 546 (2005)................................................................................ 24 People v. Mack, 26 N.Y.2d 311 (1970) .................................................................... 32,33,34 People v. Marrero, 69 N.Y.2d 382 (1987) ............................................................... 53,54,56 People v. McLean, 15 N.Y.3d 117 (2010) .................................................................... 45-46 People v. McRay, 51 N.Y.2d 594 (1980) ...................................................................... 20,35 People v. Miller, 65 N.Y.2d 502 (1985) ............................................................................. 37 People v. Mitchell-Benetiz, 168 A.D.2d 994 (4th Dept. 1990) ....................................... 37 People v. Moore, 32 N.Y.2d 67 (1973), cert. denied Moore v. New York, 414 U.S. 1011 (1973) ....................................... 20,33 People v. Morales, 281 A.D.2d 182 (1st Dept. 2001) ...................................................... 37 People v. Norwood, 177 Misc.2d 172 (Sup. Ct. Kings Co. 1998), aff’d 279 A.D.2d 638 (2d Dept. 2001) ......................................................................... 55 People v. Perel, 34 N.Y.2d 462 (1974) ............................................................................... 27 People v. Prochilo, 41 N.Y.2d 759 (1977) ......................................................................... 21 People v. Rivera, 70 A.D.3d 1177 (3d Dept. 2010) .......................................................... 57 People v. Roberson, 249 A.D.2d 148 (1st Dept. 1988) ......................................... 50,52,57 People v. Smith, 59 N.Y.2d 454 (1983) ........................................................................passim People v. Stith, 69 N.Y.2d 313 (1987) ............................................................................... 27 People v. Stroman, 6 A.D.3d 818 (3d Dept. 2004) .......................................................... 57 People v. Tarsia, 50 N.Y.2d 1 (1980) ................................................................................. 24 viii People v. Torpey, 63 N.Y.2d 361 (1984) ...................................................................... 50,51 People v. Velez, 39 A.D.3d 38 (2d Dept. 2007) ............................................................... 37 People v. Warner, 94 A.D.3d 916 (2d Dept. 2012). ......................................................... 34 People v. Watkins, 256 A.D.2d 159 (1st Dept. 1998) ...................................................... 34 People v. Weintraub, 35 N.Y.2d 351 (1974) ..................................................................... 24 People v. Wheeler, 2 N.Y.3d 370 (2004) ........................................................................... 20 People v. Wilkins, 65 N.Y.2d 172 (1985) .......................................................................... 46 People v. Williams, 63 N.Y.2d 882 (1984)......................................................... 50-51,52,56 People v. Wylie, 244 A.D.2d 247 (1st Dept. 1997) ........................................... 23,26,32,40 STATUTES Penal Law § 15.20(1)(a) ........................................................................................................ 54 Penal Law § 15.20(2) ............................................................................................................ 53 Penal Law § 140.05 ............................................................................................................... 28 Penal Law § 140.17(1) ............................................................................................................ 1 Penal Law § 140.20 ............................................................................................................... 29 Penal Law § 265.03(3) ............................................................................................................ 1 Criminal Procedure Law § 270.20(1)(b) ........................................................................ 50,58 Criminal Procedure Law § 460.50(5) .................................................................................. 17 Criminal Procedure Law § 470.35(1) .................................................................................. 20 Criminal Procedure Law § 710.40(4) ............................................................................. 36,44 Criminal Procedure Law § 710.60(4) .................................................................................. 38 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JOSEFINA JIMENEZ, Defendant-Appellant. RESPONDENT’S BRIEF STATEMENT By permission of the Honorable Jonathan Lippman, Chief Judge of the Court of Appeals of the State of New York, granted on December 28, 2012 (A.1),1 Josefina Jimenez appeals from an order of the Supreme Court of the State of New York, Appellate Division, First Department (Appellate Division), entered on September 25, 2012 (A.3-5). People v. Jimenez, 98 A.D.3d 886 (1st Dept. 2012). That order unanimously affirmed the judgment of the Supreme Court of the State of New York, Bronx County (Darcel Clark, J.) (Bronx County Supreme Court), rendered May 18, 2010, convicting defendant, following a jury trial, of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[3]), and Criminal Trespass in the First Degree (Penal Law § 140.17[1]), and sentencing her to a determinate term of three- 1 Parenthetical citations preceded by “A” and “Supp.A.” refer to the Appendix for Defendant-Appellant, and the Supplementary Appendix for Respondent, respectively. 2 and-one-half years in prison, with two-and-one-half years of post-release supervision, concurrent with an indeterminate term of one to three years in prison, respectively. By order dated July 9, 2010, the Honorable Angela Mazzarelli, Associate Justice of the Appellate Division, granted defendant a stay of execution of sentence, and released defendant upon the condition that she post bail of $10,000 bond or cash (A.7-8). By order dated February 2, 2012, the Appellate Division granted defendant’s motion to extend the stay on condition that she perfects the appeal for a specific term (A.6). In its September 25, 2012, decision affirming the judgment, the Appellate Division remitted the case to Supreme Court for execution of the sentence (A.3). On October 8, 2012, the late Honorable Theodore T. Jones, Associate Judge of the Court of Appeals, granted defendant a stay of execution of sentence pending the determinations of her leave application, and, if granted, the appeal, on the same terms as fixed by the Appellate Division (A.2). Defendant remains at liberty. 3 QUESTIONS PRESENTED 1. Whether record support exists for the trial court’s denial of defendant’s motion to suppress the firearm recovered from her purse during a warrantless search incident to a lawful arrest. The court found the search of the purse, incident to and contemporaneous with defendant’s arrest for trespass, justified as a public safety issue for the officers who were investigating a burglary since defendant could have easily grabbed the purse (A.58-59). The Appellate Division upheld the search as incident to a lawful arrest, since the purse was “large enough to contain a weapon,” “within defendant’s grabbable area,” linked with a “police investigation of a burglary,” and not in their “exclusive control” (A.3-4). 2. Whether the trial court should have reopened the hearing and suppressed the firearm recovered from defendant’s purse based on evidence elicited at trial that defendant may have been handcuffed before the search and may not have fit the description of a suspect. The trial court denied defendant’s application to reopen the hearing, finding the exigency still existed “whether or not she actually was handcuffed” and “whether or not she fit the description of the burglary call” (A.89-90). The Appellate Division affirmed, finding the search would still have been “lawful under the additional facts revealed at trial” (A.4). 3. Whether the trial court abused its discretion as a matter of law in denying defendant’s challenges for cause of two prospective jurors who answered that it would “depend on the case” whether they would require corroboration in order to credit an accused’s testimony that she did not know her actions were against the law. The trial court denied the challenges because defense counsel’s questions to the prospective jurors were “ambiguous,” and their answers merely reflected a desire “to hear more if there was more” (A.110). The Appellate Division affirmed, finding the “colloquy between counsel, the court and each panelist, viewed as a whole, did not cast doubt on either panelist’s ability to follow the court’s instructions and render an impartial verdict” (A.4). 4 THE FACTS The Indictment By indictment (2496/2008) filed July 18, 2008, the Grand Jury of Bronx County accused defendant of Criminal Possession of a Weapon in the Second Degree, Criminal Possession of a Weapon in the Fourth Degree, Criminal Trespass in the First Degree (two counts), Criminal Trespass in the Second Degree, and Possession of Ammunition. The Hearing On April 21, 2010, the Honorable Darcel Clark presided over a Dunway (Dunaway v. New York, 442 U.S. 200 [1979]), and Mapp (Mapp v. Ohio, 367 U.S. 643 [1961]), hearing (A.9). The evidence was presented as follows. The People's Case On May 23, 2008, at around 11:52 a.m., Sergeant Jason Manzari, and Police Officers Aldas, Michael Barnes, Angel Cruz, and Pagan, responded to a radio call of a burglary in progress at 2255 Barker Avenue in the Bronx. The location was part of the NYPD “Clean Halls” program, and had a posted “no trespassing” sign in the lobby entrance (Manzari: A.14-16, 20-21); Barnes: A.28-29, 37).2 2 On cross-examination, defense counsel asked Sgt. Manzari about the descriptions of the burglars contained in the Sprint report of “two male Latinos” “between 5’9” and 5’11”,” but did not show him the report. Sgt. Manzari said he could not recall that description (Manzari: A.21-22). Counsel handed the Sprint report to Officer Barnes, who responded that it “[v]aguely” refreshed his recollection of a “5’9 or 5’11” “male with a white t-shirt, dark hair,” but that he otherwise could not recall the burglars’ descriptions (Barnes: A.37-38). 5 Sgt. Manzari and Officer Aldas arrived first. They checked the rear of the building, and found it boarded up and under construction. As the officers entered the lobby, defendant and Alberto Sanchez, together, exited the stairwell into the lobby. From behind defendant and Sanchez, the building superintendent pointed at them, gestured, and “made a face.” With suspicions raised, Sgt. Manzari stopped Sanchez. Officer Aldas stopped defendant. Two or three feet separated the suspects. Officer Pagan arrived. At Sgt. Manzari’s request, an officer stopped the superintendent, spoke with her, and had her step back “for safety reasons” (Manzari: A.14-16, 21-24). As part of the “investigation” into “the burglary,” Officer Aldas questioned defendant in Spanish as to her reason for being there, while Sgt. Manzari coordinated the investigation and sent arriving officers upstairs for more information from the 911 caller. Officer Aldas told Sgt. Manzari that defendant had said she was there to visit a friend, but could not supply her friend’s name, and had said she was there to find a notary, but could not supply a name or apartment (Manzari: A.16-18; 24-25). In the interim, Officers Barnes and Cruz, the last to arrive, saw defendant and Sanchez standing in the lobby being questioned as they were about to be arrested. The officers were standing about six feet away (Barnes: A.29-30, 32, 36-37). Sgt. Manzari ordered Officers Aldas and Pagan to place defendant and Sanchez under arrest for trespass. Officer Pagan took defendant’s purse off of her shoulder. Officer Barnes noticed that, to Officer Pagan, the bag appeared weighted down. Defendant’s hands were not behind her back. Officer Pagan opened the purse, saw a 6 handgun, and removed it. She told Sgt. Manzari, “She has a gun and it’s loaded.” Sgt. Manzari told Officer Pagan to safeguard the firearm and “place [defendant] in handcuffs along with [] Sanchez.” Officer Pagan handcuffed defendant, and another officer handcuffed Sanchez. Officer Barnes took the purse and inventoried its contents at the precinct (Manzari: A.18-20, 25-26; Barnes: A.30-31, 34-36, 38-39). The Defense Case Defendant did not present testimony on her behalf. The Legal Argument Defense counsel moved to suppress the firearm pursuant to People v. Gokey, 60 N.Y.2d 309 (1983). She argued that neither officer testified to the need to search defendant’s purse, a closed container, for their safety or due to an exigency, where defendant was arrested for trespass (A.43-44; see also A.53-54). The prosecutor replied that the officers were investigating a burglary in progress, the superintendent’s gestures resulted in the stop, defendant’s conflicting answers resulted in her arrest, and the officers had the right to search her bag for their safety since the search took place contemporaneously with her arrest and the bag remained in her grabbable area (A.44-47). Alternatively, she argued the police inevitably would have discovered the firearm upon inventorying the bag (A.47). Counsel countered that the officer had “exclusive control” of the bag under Gokey, and that testimony regarding the inventory search was insufficient (A.48). The court reserved decision (A.48). By letter dated April 21, 2010, defense counsel again argued the warrantless 7 search of the closed bag absent exigent circumstances violated Gokey, and added that defendant was cooperative, neither officer had testified to fearing for their respective safety, and the bag could have been heavy for many reasons (A.49-50). The prosecutor, via e-mail, argued defendant was not handcuffed, the bag was removed contemporaneously with the arrest, and that in Gokey, unlike here, there was a concession that the officers did not suspect the defendant was armed (A.51).3 The Decision On April 22, 2010, the court (Clark, J.) issued an oral decision. Crediting the officers’ testimony, the court denied the motion (A.55). Its findings of fact reflected the testimony elicited by the two witnesses (A.55-56). Based on those facts, it held the police had reasonable suspicion to stop defendant pursuant to People v. DeBour, 40 N.Y.2d 210 (1976), because it was a Clean Halls building and the superintendent gestured to the police in a manner that suggested defendant and Sanchez had a connection “in some way to the burglary” (A.56-57). It found that defendant’s insufficient explanation for her presence supplied probable cause to arrest her for criminal trespass (A.57). Assessing the facts in light of Gokey, it found the search incident to a lawful arrest of the bag justified as a “public safety issue” for the arresting officer where “defendant was not [] in handcuffs when the police officer 3 In her oral argument, defense counsel argued “the officers violated [her] Fourth Amendment New York State Constitution” rights (A.44). Then, in her written submission, counsel argued the officer violated defendant’s “Fourth, Fourteenth Amendments and the New York State Constitution” (A.49). Counsel made no other reference to federal law. 8 immediately removed her purse, [] determined that if felt heavy, and [] opened the bag to discover the gun” (A.57, 58-59). It added that “defendant could have easily grabbed the weapon since it was in close proximity when the officer removed it off of her shoulder” and that the police did not have “exclusive control” of defendant or her bag. Finally, while acknowledging that under Gokey, the “reasonableness” of the warrantless search “is measured at the time of arrest,” the court found the search lawful because it occurred “contemporaneous with the arrest” (A.57-58, 59).4 The Jury Selection After the court and the prosecutor conducted voir dire of the first panel of 16 prospective jurors (see A.93), defense counsel addressed them as follows: So [the prosecutor] just asked you [a hypothetical] about … finding [prospective Juror Three] Bellamy guilty of wearing a black shirt on Thursday after 2 p.m. [if the law prohibited it], and people agreed that if [she] proved it, then they would find Ms. Bellamy guilty…? [W]hat if Ms. Bellamy did not know that that was a crime, for her to wear the black shirt on Thursday … what would your verdict be? (A.95). Prospective Juror Seven (Ms. Fedee) answered, “I would -- like I said, I guess you would have to prove that she didn’t know.” Counsel pressed, “And how do you think somebody would prove that she did not know?” She received no answer. Counsel then engaged in a conversation with Ms. Bellamy (A.95). Counsel: Since you’re [] the subject here, let’s say you didn’t know that you could not wear a black shirt on Thursday after 3 4 The court said it would issue a subsequent written decision (A.59-60). Neither party to this appeal has located such a decision in the court file. 9 p.m. … [W]hat do you think could be done to prove that you did not know? Bellamy: You could -- you have to have evidence that I didn’t know. Counsel: And if she got on the stand and said she did not know, would that be enough for people? Bellamy: No. Counsel: What more would you want? Bellamy: Maybe for somebody else to tell me that you didn’t know, because now it’s your word against my word, so maybe she needs some other people to help her make it known to me, like prove to me she didn’t know she couldn’t wear the shirt. Counsel: So you need more than one person? Bellamy: Right. Counsel: Does everybody agree with Ms. Bellamy? Ms. Marte, do you agree? Do you want somebody else to decide? Marte: The same thing. Counsel: You want more than one person to explain that … Marte: Yeah. Counsel: You’re also shaking your head, Mr. Rubio. Rubio: Yes. Counsel: So, Ms. Bellamy is not enough? Rubio: No. One more. (A.95-96). When asked, prospective Juror Two (Ms. Wircinski) interjected: I’m also kind of hinging …. I thought ignorance of the law is no excuse. … I don’t know if that’s true or not, but, um, I definitely would need somebody else to back it up that she didn’t know (A.96-97). She continued, “Her word alone wouldn’t be enough to convince me, no.” Prospective Juror Ten (Mr. Simpson) agreed that he would “need [to hear] more than one person” (A.97). Addressing the panel, defense counsel asked, “Does anybody here just need Ms. Bellamy? Everybody needs Ms. Bellamy and something else?” No one responded. The court remarked: 10 When you start getting into the law, that’s where I come in. It’s not the quantity of the evidence; it’s the quality of the evidence. So there are some times where the testimony of one person may be enough, and I’ll instruct you in those particular areas where it applies, but it has nothing to do with how many people say it. It’s the question of the quality of the evidence whether it’s one or more than one. (A.97). Counsel asked, “Do you change your mind now[?]” Ms. Bellamy said, “Yeah.” Counsel then asked another prospective juror, “[S]o it’s just like your gut said, I need more than one person?” That juror responded, “I guess if you had enough evidence to prove that you knew, then maybe I would find [her] guilty of wearing a black shirt.” Counsel retorted, “But if you didn’t know and it’s just you, do you still need more than one person?” The juror responded, “No” (A.97-98). Counsel then returned to Ms. Marte and Mr. Rubio: Counsel: [D]o you still want more than one person? Marte: Same thing that I said before. Counsel: You still need more than one person? Marte: Yes. Counsel: So even if we say it’s not how much, it’s just the quality of the evidence, that’s not sufficient for you? Marte: No. Sometimes it’s okay, but sometimes some cases it depends on the case. Counsel: Mr. Rubio? Rubio: It depends on the case. Counsel: Do you think just one person is enough? Rubio: I think I need one more. Counsel: You want more than one person. Do you want more than one person? Rubio: No. As long as the person is credible, that’s fine. (A.98-99). After asking prospective Juror Eight (Mr. Myrie), who responded she would not need more than one person “in a case like this,” counsel returned to Mr. 11 Rubio and asked, “[I]f it’s just one person, does credibility come into it?” Mr. Rubio replied, “Without a doubt. It can. It’s important” (A.99).5 After speaking to another prospective juror, counsel repeated: So, if Ms. Bellamy said I did not know after 2 p.m. on Thursday I cannot wear a black shirt, she explained why she didn’t know, would that be sufficient for you, or you would want somebody else to back her up? (A.100). Prospective Juror Fifteen (Ms. Montero) said she found it “hard” without “other people to back it up,” and added, “It depends, the situation” (A.100). In selecting jurors, the court excused on consent prospective Jurors One, Six, Eight, Ten, and Twelve (A.108-09). Defense counsel challenged for cause only “Ms. Marte and Mr. Rubio” because “they both, I could be wrong, they both said they need more than one” witness (A.109); she did not challenge Ms. Montero, who had said the same thing. The prosecutor replied that all the jurors were “saying I might need more depending,” and she was unsure if counsel was “clear on [] exactly what [her] one witness is going to be saying” (A.109-10). The court denied the challenges because the defense “questions” were “so ambiguous” and “people always want to hear as much as they can, but they’re not always going to hear it.” The court “found they didn’t necessarily … ha[ve] to have more” but only said they “would like to hear more if 5 After Mr. Rubio, cited as “a prospective juror” stated, “I think I need more than one person,” defense counsel responded, “You want more than one person. Do you want more than one person?” Then, “a prospective juror” answered, “No. As long as the person is credible, that’s fine” (A.99). A fair reading of this discussion suggests Mr. Rubio gave that answer since, moments later, counsel returned to him and asked, “Mr. Rubio, if it’s just one person, does credibility come into it?” and he answered, “Without a doubt. It can” (A.99). 12 there was more” (A.110). The court added, “They both said they could understand the [distinction between the quantity [of evidence] versus the quality” (A.157). Defense counsel did not question any later jury panel on this issue. Defendant exhausted her peremptory challenges (A.111). The Trial The People’s Case On May 23, 2008, at around 11:52 a.m., Sgt. Jason Manzari, his partner, Officer Robert Aldas, Officer Michael Barnes, his partner Officer Angel Cruz, and Officer Jacqueline Pagan responded to a radio call of a burglary in progress at 2255 Barker Avenue in the Bronx. The location was part of the NYPD “Clean Halls” program, and had a posted “no trespassing” sign in the lobby entrance (Manzari: A.63-66, 68- 69; Pagan: A.78-79; Cruz: Supp.A.6-8; Aldas: Supp.A.13-16; Barnes: Supp.A.26-27).6 Sgt. Manzari and Officer Aldas arrived first. As they entered the lobby, they saw defendant and Alberto Sanchez exiting from the stairwell. The superintendent pointed at defendant and Sanchez and gestured. Officer Cruz recognized the gesture —hands raised upright—as a sign to stop them. Sgt. Manzari stopped Sanchez. Officer Aldas stopped defendant. Officers Pagan, Barnes and Cruz arrived (Manzari: A.63-64, 71; Pagan: A.78-79; Cruz: Supp.A.8; Aldas: Supp.A.15-16; Barnes: Supp.A.27- 6 Sgt. Manzari did not independently recall the radioed description of the burglars, but read from a Sprint report supplied by the defense. He answered the question, “And the description was two male Latinos?” with, “I though it said one male here” “but then it says two males, possibly two males with a crowbar,” and gave a height description of 5’9” to 5’11” and an age description of “approximately thirties” (A.70-71). 13 28).7 Officer Aldas asked defendant in Spanish whether she lived in the building or had any other reason for being there. Defendant told Officer Aldas that she had come to visit her sister. When Officer Aldas asked for an apartment, defendant could not supply one, so Officer Aldas offered to go upstairs with her to the apartment. Defendant then said she was there to find a notary. Defendant refused to give an apartment number or name to verify her claims. Officer Aldas informed Sgt. Manzari of defendant’s answers (Aldas: Supp.A.16-17). Sgt. Manzari, who was continuing to direct the police investigation of the burglary complaint, ordered Officers Aldas and Pagan to place defendant and Sanchez under arrest for trespass (Manzari: A.65; Aldas: Supp.A.17-18). Officer Pagan began to search defendant (Pagan: A.79; Aldas: Supp.A.18). Defendant held the purse tight to her body (Pagan: A.79; Cruz: Supp.A.9; Aldas: Supp.A.18, 21). Officer Pagan pulled defendant’s purse off her shoulder and opened it (Manzari: A.66; Pagan A.79; Cruz: Supp.A.9; Aldas: Supp.A.18; Barnes: Supp.A.28). Inside, she saw a loaded, black .380 caliber pistol resting atop the purse’s contents (Pagan: A.82, 85-86). She removed the firearm (Manzari: A.66; Pagan: A.79, 82; Cruz: Supp.A.9; Aldas: Supp.A.18; Barnes: Supp.A.28, 37). She told Sgt. Manzari, “there’s a gun,” and “it’s loaded” (Manzari: 7 Sgt. Manzari stated that Sanchez, to the “best of [his] recollection” was a 5’8” tall Latino man in his “mid to late twenties,” with braids in his hair. When handed an unknown document by the defense, he read it and said, “This says five-feet-two.” Counsel asked, “Did that refresh your recollection that [] Sanchez was actually five-two?” and Sgt. Manzari answered, “Yes” (A.73-74). 14 A.66; Pagan: A.83). Defendant said, “No es mio” (it’s not mine) (Pagan: Supp.A.2; Barnes: Supp.A.37). Sgt. Manzari told Officer Pagan to safeguard the pistol (Manzari: A.66; Pagan: A.83). Officer Pagan handed the pistol to Officer Aldas, who removed the clip (Pagan: A.83; Aldas: Supp.A.19). Officer Pagan searched defendant and handcuffed her (Manzari: A.66; Aldas: Supp.A.19; Barnes: Supp.A.28). Another officer handcuffed Sanchez (Manzari: A.66). After defendant was handcuffed, Officer Aldas handed the pistol back to Officer Pagan (Aldas: Supp.A.19). Only a few minutes had passed since Sgt. Manzari and Officer Aldas had entered the lobby (Manzari: A.66; Aldas: Supp.A.21-23).8 Officer Pagan transported defendant, while Officers Barnes and Cruz transported Sanchez to the precinct (Manzari: A.73; Pagan: A.83; Cruz: Supp.A.9-10; Barnes: Supp.A.29). At the precinct, Officer Barnes obtained defendant’s pedigree. He learned she did not live or work at 2255 Barnes Avenue. He also determined that defendant did not have a permit for the gun. He inventoried and vouchered the bag (People’s Exhibit 1 [blue purse]: A.80-81). He examined the pistol, recovered twelve rounds of ammunition from its clip and one round from its chamber, vouchered them, and sent them for ballistics testing (Pagan: A.84; Barnes: Supp.A.29, 33-34, 36). 8 Officer Pagan testified that she started patting defendant down for weapons, when she noticed defendant hold the bag tightly to her body. Officer Pagan took the bag off her shoulder, placed it on the ground, handcuffed her, finished patting her down, picked up the bag, and opened it. When asked whether she handcuffed defendant before or after searching the bag, Officer Pagan replied, “I believe I handcuffed her before” (A.79). 15 Detective Salvatore Scaturro, a NYPD firearms examiner and expert in the field of ballistics and firearms analysis, received the firearm, magazine and thirteen rounds. He determined the pistol was a semi-automatic .380 caliber Fabrique National. He tested and found both the pistol and ammunition operable (Scaturro: Supp.A.41, 43-44, 47, 51-52; People’s Exhibit 2 [firearm]: Supp.A.31, 52). The Mid-Trial Application to Reopen the Hearing After Sgt. Manzari finished testifying and Officer Pagan had testified on direct- examination (A.61-86), defense counsel moved to reopen the hearing based on Officer Pagan’s testimony that she had handcuffed defendant before searching the bag, which, counsel argued, removed any exigency justifying the search (A.87). The prosecutor replied that the search occurred contemporaneously with the arrest and was a matter of officer safety, and noted that Officer Pagan had expressed uncertainty in her testimony as to when she had handcuffed defendant (A.87-88; see footnote 8). Defense counsel added that the radio run was for “two male Latinos, five-eight to five-eleven, age 30,” and that defendant “is clearly not a male Latino” and “doesn’t fit the description” (A.89). Defense counsel concluded, “I ask that I get to reopen the hearing or that the gun be suppressed” (A.89). Without asking the prosecutor to respond, the court denied the application to reopen the hearing. It found the officers were “responding to a burglary,” had been directed to defendant and Sanchez by the superintendent, and had questioned them as part of that investigation. It found the arrest and search were “contemporaneous[,]” and the bag “was clearly within the 16 grabbable [sic] area of the defendant.” Without making a factual determination, it held, “[W]hether or not she actually was handcuffed,” and “whether or not she fit the description of the burglary call,” it still created a safety issue for the officers (A.89-90). The Defense Case Defendant did not present testimony on her behalf. The Sentence On May 18, 2010, Supreme Court, Bronx County (Clark, J.) sentenced defendant to concurrent terms in prison of three-and-one-half years with two-and- one-half years post-release supervision, and from one-to-three years. The Appeal On appeal to the Appellate Division, defendant claimed the nisi prius court had erred in denying suppression after the hearing and after her motion to reopen, by finding the search of her purse—where she was arrested for criminal trespass— lawful under Gokey (Brief for Defendant-Appellant in the Appellate Division, pp.25- 35). She also claimed the trial court had erred in denying her challenges for cause of two prospective jurors who suggested they would need to hear corroborating evidence before crediting an accused’s “testimony that she lacked the requisite knowledge for the commission of a crime” (id., pp. 35-39). On September 25, 2012, the Appellate Division unanimously affirmed the conviction. It held, in pertinent part: 17 The police lawfully searched defendant’s shoulder bag as incident to a lawful arrest …. The bag was large enough to contain a weapon and was within defendant’s grabbable area at the time of her arrest for criminal trespass in connection with the police investigation of a burglary. Moreover, the police did not have exclusive control of the bag. The surrounding circumstances here support a reasonable belief in the existence of an exigency justifying a search of the bag, even though the officers did not explicitly testify at the suppression hearing that they feared for their safety …. The court properly denied defendant’s application to reopen the hearing based on trial testimony. The court correctly determined that the search would still have been lawful under the additional facts revealed at trial. The court properly exercised its discretion in denying defendant’s challenges for cause to two prospective jurors. The colloquy between counsel, the court and each panelist, viewed as a whole, did not cast doubt on either panelist’s ability to follow the court’s instructions and render an impartial verdict[.] (A.3-4). Jimenez, 98 A.D.3d at 886 (internal citations and quotation marks omitted). The Appellate Division remitted the case to Supreme Court, Bronx County, for execution of the sentence pursuant to CPL § 460.50(5).9 On October 8, 2012, the late Associate Judge Theodore T. Jones granted defendant a stay of execution of sentence pending the determinations of her leave application, and, if granted, the appeal (A.2). On December 28, 2012, Chief Judge Lippman granted defendant’s application for leave to appeal (A.1). 9 In the Appellate Division, defendant also claimed the trial court had erred in its inquiry into allegations of juror misconduct that resulted in the discharge of one sworn juror (Brief for Defendant-Appellant in the Appellate Division, pp. 39-44). The Appellate Division found the trial court had conducted a thorough inquiry and properly exercised its discretion in determining that no further inquiry was required (A.4-5). Jimenez, 98 A.D.3d at 886-87. Defendant does not challenge that ruling on this appeal. 18 ARGUMENT POINT ONE THE NISI PRIUS COURT PROVIDENTLY FOUND THE SEARCH OF DEFENDANT’S PURSE, INCIDENT TO HER ARREST, LAWFUL. The hearing court denied the motion to suppress the firearm recovered from defendant’s purse during a search incident to her arrest for trespass. It found the “factual scenario” presented justified the police officers’ suspicions that the defendant and her associate were “connected in some way to the burglary” to which the officers were responding, and that the officers did not have “exclusive control” of the purse, where it “remained in [defendant’s] grabbable space” (A.57, 59-60). The Appellate Division upheld the search for like reasons, explaining, “The surrounding circumstances here support a reasonable belief in the existence of an exigency justifying” the search (A.3-4). People v. Jimenez, 98 A.D.3d 886 (1st Dept. 2012). On appeal, no question is raised concerning the correctness of this initial determination.10 Mid-trial, the court denied defendant’s application to reopen the suppression hearing based on Officer Pagan’s direct trial testimony, “I believe I handcuffed [defendant] before” searching her purse (A.79), and Sgt. Manzari’s trial testimony of the 911 caller’s description of the suspected burglars as two Latino men (A.70-71). It 10 At no point in defendant’s brief does she argue that the credited testimony, as elicited at the hearing alone, was insufficient (Brief for Defendant-Appellant, pp. 28-46). Instead, defendant seeks suppression based on the combined testimonies of the hearing and of two witnesses at trial (id., pp. 10-11). Yet, as will be discussed in the Point, that analysis is not possible in this case. Accordingly, this response addresses each issue separately. 19 held, “[W]hether or not [defendant] was handcuffed,” and “whether or not [defendant] fit the description,” the search remained lawful because the purse was still in “close proximity” and within her “grabbable area,” and it still created a “safety” issue (A.89-90). The Appellate Division found the lower court had “properly denied [the] application to reopen” because “the search would still have been lawful under the additional facts revealed at trial” (A.4). Jimenez, 98 A.D.3d at 886. On appeal, defendant relies on the hearing testimony of Sgt. Manzari and of Officer Barnes, the trial testimony of Sgt. Manzari, and the direct trial testimony of Officer Pagan to argue that, although her arrest for trespass was lawful, the search of her purse incident to that arrest was not justified by exigent circumstances, mandating suppression of the firearm recovered therefrom (Brief for Defendant-Appellant, pp. 11-16, 28-46). She also argues, for the first time, that the courts below applied an erroneous legal standard when they failed to analyze the reasonableness of the search “at the time of the search,” rather than at arrest, as required by recent federal constitutional jurisprudence, Arizona v. Gant, 556 U.S. 332 (2009), which, she claims, renders People v. Gokey, 60 N.Y.2d 309 (1983), untenable to that extent (Brief for Defendant-Appellant, pp. 43-45). A. The Legality Of The Search Of Defendant’s Purse Presents A Mixed Question Of Law And Fact Beyond This Court’s Jurisdiction. The hearing court properly declined to suppress the firearm recovered from defendant’s purse during a search incident to a lawful arrest because the search was 20 justified by exigent circumstances, the safety of the public and the officers, and it occurred in close spatial and temporal proximity with her arrest. This determination of the hearing court, undisturbed by the Appellate Division and supported by evidence in the record, is beyond this Court’s authority to review. See N.Y. Const. Art. VI, § 3(a); CPL § 470.35(1). Whether law enforcement acted reasonably in conducting the warrantless search of the purse incident to defendant’s arrest involves “a mixed question of law and fact.” People v. Greenidge, 91 N.Y.2d 967, 968 (1998) (reasonableness of the search of pouch is mixed question); People v. Davis, 64 N.Y.2d 1143, 1144 (1985) (same); People v. Bowden, 87 A.D.3d 402, 405 (1st Dept. 2011) (bag search), app. dismissed 18 N.Y.3d 980 (2012) (appeal dismissed as mixed question); cf. People v. Cloud, 79 N.Y.2d 786 (1991) (exigency justifying warrantless entry is mixed question). Review, then, “is limited to whether there is record support for the determinations of the courts below.” People v. Wheeler, 2 N.Y.3d 370, 373 (2004). And, the issue is beyond the scope of review where “facts are disputed,” “credibility is at issue” or “reasonable minds may differ as to the inference to be drawn.” People v. Harrison, 57 N.Y.2d 470, 477 (1982), quoting People v. McRay, 51 N.Y.2d 594, 601 (1980). Under the New York Constitution, “[t]he touchstone of any analysis of a governmental invasion of a citizen’s person” or effects is “reasonableness.” People v. Batista, 88 N.Y.2d 650, 653 (1996), quoting People v. Chestnut, 51 N.Y.2d 14, 22, n. 7 (1980); People v. Moore, 32 N.Y.2d 67, 69 (1973), cert. denied Moore v. New York, 21 414 U.S. 1011 (1973). As to searches of effects incident to arrest, “the reasonableness of each search … [must] be determined on the basis of the facts and circumstances of the particular case.” People v. Smith, 59 N.Y.2d 454, 457 (1983); accord Chimel v. California, 395 U.S. 752, 765 (1969) (warrantless search of house). The “determination of the suppression court, with its advantages of having seen and heard the witness[es], must [also] be accorded great weight.” People v. Prochilo, 41 N.Y.2d 759 (1977). In New York, “a warrantless search incident to arrest” of a person’s effects is reasonable if “justified by the presence of exigent circumstances.” Gokey, 60 N.Y.2d at 312. Those exigent circumstances include “the safety of the public and the arresting officer; and the protection of evidence from destruction or concealment.” Id.; cf. People v. Belton, 50 N.Y.2d 447, 453 (1980) (Belton I) (“When a suspect is placed under custodial arrest, there is always present the danger that he [or she] may seek to use a weapon to effect an escape or destroy or conceal evidence of a crime”), rev’d New York v. Belton, 453 U.S. 454 (1981), on remand People v. Belton, 55 N.Y.2d 49 (1982) (Belton II) (the exception “is grounded in protecting the safety of the arresting officer … and in preventing the person arrested from destroying evidence”). “The reasonableness of a police officer’s assertion of the presence” of these interests “is measured at the time of the arrest.” Gokey, 60 N.Y.2d at 312; Smith, 59 N.Y.2d at 458. But, “the search must have been conducted contemporaneously with the arrest.” Gokey, 60 N.Y.2d at 312. Thus, a closed container “within the immediate control or ‘grabbable area’ of a suspect at the time of his arrest” may be searched if 22 the “circumstances leading to the arrest support a reasonable belief that the suspect may gain possession of a weapon or be able to destroy evidence located in the bag.” Gokey, 60 N.Y.2d at 311 (emphasis added); Smith, 59 N.Y.2d at 457 (“A container capable of concealing a weapon and the contents of which are readily accessible, taken from a person arrested … may be searched … when the search is close in time to the arrest and there is reason to suspect that the arres[tee] may be armed”); accord People v. Langen, 60 N.Y.2d 170, 181 (1983) (“a search incident to arrest may be conducted without probable cause beyond that to arrest the person, thereby necessitating [] strict temporal and spatial limits, as well as the presence of some exigency”). For instance, in Smith, detectives stopped the defendant for theft of services in the subway, observed he was wearing a bullet-proof vest—which he denied—told him that he was under arrest, escorted him to a nearby room, handcuffed him, searched him, and opened a zipped briefcase he had been holding. Id. at 456. This Court upheld the search, because: At the time of arrest defendant was holding the briefcase in his hand; its contents were, therefore, readily accessible to him and it was of sufficient size to contain a weapon. Defendant had just committed a crime and while that crime was not one suggestive of the presence of a weapon, the fact that defendant was wearing a bullet-proof vest certainly was, and was enhanced by his denial of the fact. The arrest and search of the briefcase were for all practical purposes conducted at the same time and in the same place. … Whether in fact defendant could have had access to the briefcase at the moment it was being searched is irrelevant. Id. at 459; cf. People v. Johnson, 59 N.Y.2d 1014, 1016 (1983) (“search of defendant’s shoulder bag, two feet away from him at the time of his arrest for a crime involving a 23 gun, was valid”); People v. De Santis, 46 N.Y.2d 82, 88 (1978) (search of defendant’s unlocked suitcase, “directly upon defendant’s arrest” for marijuana possession, after moving him to a private room, valid), cert. denied De Santis v. New York, 443 U.S. 912 (1979), overruled on other grounds by Belton I, 50 N.Y.2d at 451, n.1. Defendant protests, for the first time, that as a matter of federal constitutional law, this analysis is partly in error. She argues the courts must now assess the presence of exigent circumstances justifying a search incident to arrest “at the time of the search,” and not arrest (Brief for Defendant-Appellant, pp. 34-36, 43-45, citing Gant, 556 U.S. at 344, 351). Yet, at post-hearing argument, she asserted the warrantless search of her purse violated her constitutional rights as expressly defined by Gokey and People v. Hendricks, 43 A.D.3d 361 (1st Dept. 2007) (see A.44 [“based on [] Gokey [and] [] Hendricks … I believe this was a closed container … they needed to get a warrant to search the bag … [and] the officers violated [defendant’s] Fourth Amendment New York State Constitution (sic)”]; see also A.43, 48, 49, 54 [same]). The court adopted that legal standard, citing Gokey for the proposition that the reasonableness of the search “is measured at the time of the arrest” (A.57-58).11 For defendant now to claim this analysis was incorrect because Gant (purportedly) requires the reasonableness of any search be measured as of “the time of the search,” 11 In moving to reopen the hearing at trial, defendant likewise argued that, applying the “two exceptions … listed in Gokey,” neither exigency was established (A.89; see A.87- 88). Relying on the progeny of Gokey, including People v. Wylie, 244 A.D.2d 247 (1st Dept. 1997), the trial court reiterated its position that the search remained valid even if defendant had been handcuffed because it took place contemporaneously with the arrest (A.89-90). 24 Gant, 556 U.S. at 343, is improper. Defendant not only failed to preserve this claim, but expressly forfeited it by inviting the (allegedly) erroneous analysis in the first place. See People v. Echevarria, 6 N.Y.3d 89, 92 (2005) (claim forfeited where defendant “not only failed to object … but affirmatively argued against the applicability of [the legal standard]”); People v. Tarsia, 50 N.Y.2d 1, 9 (1980) (for “defendant … to now be permitted to reverse his chosen course … would be to countenance his eating his cake and having it too”); cf. People v. Lewis, 5 N.Y.3d 546, 551 (2005) (forfeiture where the court adopted defendant’s language).12 Regardless, Gant has no bearing on this appeal. Under Federal law, once law enforcement effectuates a lawful arrest for a crime, the “search incident” of the defendant’s person as well as any closed container taken from his or her person “requires no additional justification.” People v. Weintraub, 35 N.Y.2d 351, 354 (1974) (upholding search of attaché case incident to arrest for trespass), citing United States v. Robinson, 414 U.S. 218, 235 (1973); accord Smith, 49 N.Y.2d at 458. Hence, any federal argument addressed to the search of defendant’s purse incident to her arrest for trespass cannot withstand scrutiny. See, e.g., United States v. Brewer, 624 F.3d 900, 905-06 (8th Cir. 2010) (distinguishing Gant from Robinson searches). 12 Even on appeal, defendant initially dismissed this very argument. In the Appellate Division, she acknowledged the search “might (or might not) be tenable under [the] federal constitution” and only asserted it was “flatly inconsistent with the well-established law of New York” (Brief for Defendant-Appellant in the Appellate Division, pp. 26-27). She then invited the Appellate Division to decide the issue exclusively under the Gokey standard, and “not decide the federal issue” (id., p.26 n.9). 25 Gant is also easily distinguishable. In Gant, officers arrested the defendant for driving with a suspended license (a traffic offense), handcuffed him, and “secured” him in a patrol car before two officers searched his vehicle and recovered a firearm and cocaine. Gant, 556 U.S. at 336. In invalidating that search, the Supreme Court “adopted a new, two-part rule under which an automobile search incident to a recent occupant’s arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains ‘evidence relevant to the crime of arrest.’” Davis v. United States, 131 S.Ct. 2419, 2425 (2011), quoting Gant, 556 U.S. at 343. Defendant now argues the first part of this rule should apply to all searches incident to arrest of closed containers (Brief for Defendant-Appellant, pp. 34-36).13 Yet, the “first part of [this] new two-part rule—which permits an arresting officer to search the area within an arrestee’s reach at the time of the search—applies, as of now, only to vehicle occupants and recent occupants.” Gant, 556 U.S. at 364 (Alito, J., dissenting). The rationale supporting such a rule “in connection with a roadside stop” is that “police virtually always have a less intrusive and more effective 13 Undisputedly, the second part of the Supreme Court’s new rule does not “follow” from its search incident to arrest precedent, but is based on “circumstances unique to the vehicle context.” Gant, 556 U.S. at 343. Hence, it is not at issue on this appeal. Notably, in Davis, the Supreme Court also held that “evidence obtained during a search conducted in reasonable reliance on binding precedent [here, Gokey] is not subject to the exclusionary rule,” and, consequently, Gant cannot be utilized to suppress evidence obtained through searches that occurred before Gant was decided (as happened here). Davis, 131 S.Ct. at 2429, 2434. But cf. People v. Bigelow, 66 N.Y.2d 417, 437 (1985) (good faith exception to exclusionary rule not applicable as a matter of state constitutional law). 26 means of ensuring their safety—and a means that is virtually always employed: ordering the arrestee away from the vehicle, patting him down … handcuffing him, and placing him in the squad car” prior to the search. Gant, 556 U.S. at 351-52 (Scalia, J., concurring). That rationale does not apply in other searches incident to arrest, such as the “the highly dangerous and volatile situation with which the police” may be “confronted” where an arrestee, believed to be armed, may only be handcuffed. People v. Johnson, 86 A.D.2d 165, 168 (1st Dept. 1982), aff’d for the reasons stated below 59 N.Y.2d at 1016; Wiley, 244 A.D.2d at 451 (“a determined arrestee may use means other than his hands—such as kicking or shoving the arresting officer—to disrupt the arrest process in order to gain a weapon”). There is no reason, then, to apply this Gant principle to non-vehicle searches. Regardless, this question is academic to this appeal. As stated, defendant forfeited this argument by not presenting it below and relying, instead, on Gokey. Further, as will be shown, under any view of the evidence, defendant and Sanchez remained within reaching distance of the purse at the time of its search. Notably, the Gant decision otherwise reiterated the “fundamental principles” established in Chimel. Gant, 556 U.S. at 343. It restated that a search of effects incident to arrest may only include “the space within an arrestee’s ‘immediate control,’ meaning ‘the area from within which he might gain possession of a weapon or destructible evidence.’” Gant, 556 U.S. at 335, 339, citing Chimel, 395 U.S. at 763; accord Gokey, 60 N.Y.2d at 312. It also required that law enforcement “reasonably 27 have believed” that the suspect “could have” accessed those effects (or, in the words of this Court, that “circumstances leading to the arrest supported a reasonable belief that the suspect may gain possession of a weapon or be able to destroy evidence”). Gant, 556 U.S. at 344; accord Gokey, 60 N.Y.2d at 311. Of course, the reasonableness of any such intrusion must be considered in light of the circumstances surrounding each arrest. The underlying rationale for permitting searches incident to arrest is not out of a concern for safety or to preserve evidence, but “because they represent de minimus intrusions when compared with the loss of liberty occasioned by the arrest that preceded them.” People v. Hall, 10 N.Y.3d 303, 319 (2008), citing De Santis, 46 N.Y.2d at 87. Tempered with that understanding is the fact that, in every case involving the “immediate personal effects” of a person (such as a purse) at the time of arrest, law enforcement will “search and inventory” those effects upon arrival at the precinct (as happened here). See, e.g., People v. Perel, 34 N.Y.2d 462, 467 (1974).14 Hence, a defendant who has been lawfully arrested cannot seriously claim a “reasonable expectation of privacy” in those effects following 14 Notwithstanding the lawfulness of the arrest and the inevitability that officers would search the immediate personal effects of the arrestee at the precinct, the inevitable discovery doctrine could not be applied, as a matter of State Constitutional law, to the situation presented in this case since the evidence recovered was obtained as the immediate consequence of the illegal police conduct. Compare People v. Stith, 69 N.Y.2d 313, 319-20 (1987) (that the gun, seized illegally, would inevitably have been discovered through an inventory search is insufficient). Notably, under Federal law, such evidence would be admissible. See generally United States v. Whitehorn, 829 F.2d 1225, 1232 (2d Cir.1987) (distinguishing the New York rule), cert. denied, 487 U.S. 1237 (1988). 28 arrest. In balancing this de minimus privacy concern against the need to protect officer safety, it is not surprising that this Court went further and allowed for searches “‘not significantly divorced in time or place from the arrest’” to be “conducted even [when] the [arrestee] has been subdued and his closed container is within the exclusive control of the police.” Smith, 59 N.Y.2d at 458, quoting De Santis, 46 N.Y.2d at 88. Applying these principles, it is apparent the hearing court properly denied the motion to suppress the firearm. The record supports the court’s conclusion that the officers had reason to believe that defendant’s purse may have contained a weapon. The officers responded to a 911 call from an identified caller reporting a “burglary in progress” at that address (A.14, 17-18, 20-21, 37). On arrival, they confirmed that the rear of the building was boarded up, so no one could enter or exit from there (A.15). On entering the lobby, they observed defendant and Sanchez heading toward the exit from the stairwell as the superintendent drew the officers’ attention to them, made a face, and gestured for the officers to stop them (A.15-16, 23). That reaction justified the officers’ belief that these two individuals might be connected in some way to the burglary. And, the officers stopped them as part of their investigation into that burglary (A.16-17). The conflicting and evasive answers defendant supplied gave the officers probable cause to believe Sanchez and she had entered the location illegally. That undisputed fact also heightened the officers’ suspicion of their possible involvement in the burglary. Compare Penal Law § 140.05 (“A person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises”), with 29 Penal Law § 140.20 (“A person is guilty of burglary … when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein”). The surrounding circumstances further supported the reasonableness of the belief that defendant or Sanchez could easily have gained possession of a weapon. When Sgt. Manzari ordered Officer Pagan to place defendant under arrest for trespass, Officer Pagan took defendant’s purse from her shoulder (A.19, 25). Officer Pagan noticed that the purse, which was large enough to contain a firearm, was visibly weighted down (A.15, 30, 38). Thus, the circumstances supported the arresting officers’ “reasonable belief that the suspect[s] may gain possession of a weapon or be able to destroy evidence located in the bag,” even if the officers had only arrested her for trespass. Gokey, 60 N.Y.2d at 311; see Smith, 59 N.Y.2d at 459 (while theft of services is not “suggestive of the presence of a weapon, the fact that defendant was wearing a bullet-proof vest certainly was”). The search of the purse was conducted “contemporaneously with the arrest,” and it remained “within the immediate control or ‘grabbable area’” of defendant and Sanchez. Gokey, 60 N.Y.2d at 312. Upon removing the purse from defendant’s shoulder, Officer Pagan opened it and immediately saw the firearm, raising the inference that the firearm rested atop its contents (A.19, 31). At that time, defendant’s hands were not behind her back, and Sanchez and she had yet to be handcuffed (A.19, 26, 38). They also stood only a few feet apart (A.24). Moreover, only Officers Pagan and Aldas were close enough to the two suspects to exert control over them. 30 Thus, both defendant and Sanchez were positioned where they could have overwhelmed either of the two officers, grabbed the purse, which remained in close proximity, drawn the loaded firearm, and shot them. In other words, ample record support exists for the hearing court’s determination that the search was justified by these exigent circumstances. Compare Gokey, 60 N.Y.2d at 311, 314 (no exigency where officers knew the defendant was traveling with marihuana, took his bag, placed it on the ground between his feet, frisked him, handcuffed him behind his back, called for a police dog, waited, utilized a canine sniff, and unzipped the bag, because his arrest was for “nonviolent crimes,” the “People concede[d]” the lack of police concern he was armed, the officers’ conduct in permitting defendant to “keep the bag” while being frisked belied any notion of exigency, and, well before the search, he had been handcuffed behind his back and was “surrounded by five police officers”). Even so, defendant argues that this Court has never authorized such a search in the absence of “tangible proof” of a weapon or other contraband supporting the officer’s belief (Brief for Defendant-Appellant, pp. 36-39). Yet, this Court has never adopted that argument. In fact, probable cause (another word for tangible proof) to believe the arrestee may have a weapon or may destroy evidence is not required. Langen, 60 N.Y.2d at 181; Belton, 50 N.Y.2d at 453 (same). Instead, the question is whether the “circumstances leading to the arrest support a reasonable belief that the suspect may gain possession of a weapon.” Gokey, 60 N.Y.2d at 311; Smith, 59 N.Y.2d at 457 (there need only be a “reason to suspect that the arres[tee] may be 31 armed”). Notably, the prior decisions of this Court also did not turn on the “tangible proof” the officers had that the closed container contained a weapon or disposable evidence. See Gokey, 60 N.Y.2d at 313-14 (search could not be “justified by the need to preserve evidence” because “defendant’s hands were handcuffed behind his back and he was surrounded by five police officers,” and the officers did not “seize the bag” from defendant); Johnson, 59 N.Y.2d at 1016 (search of shoulder bag for crime involving gun reasonable because the bag was within reach of defendant); Smith, 59 N.Y.2d at 459 (search of briefcase reasonable where “for all practical purposes [it was] conducted at the same time and in the same place” as arrest); Belton I, 50 N.Y.2d at 449 (search of jacket unreasonable where there was “no longer any danger that the arrestee … might gain access to the article”); De Santis, 46 N.Y.2d at 89 (“search of suitcase, having a close nexus to the time and place of the arrest, was reasonable”). In any event, as stated, from the facts surrounding defendant’s arrest, the officers had sufficient reason to believe defendant’s purse may have contained a weapon.15 15 The intermediate appellate court decisions upon which defendant relies happen to reflect situations where the officers had probable cause to believe that the defendant had secreted a weapon or stolen property into bags. See Bowden, 87 A.D3d at 403 (in connection with a shooting, officers stopped a woman as she fled the shooting suspect’s apartment; she dropped a bag, causing a loud thud, and an officer felt an L-shaped object by touching the outside of the bag, causing the officer to conclude it was a gun); People v. Burgos, 81 A.D.3d 558 (1st Dept. 2011) (“the officer had just seen defendant stealing merchandise and placing it in the backpack”); People v. Estrella, 288 A.D.2d 133, 133-34 (1st Dept. 2001) (“police [] had been informed by the victim and by a witness that defendant had used a knife in the commission of a sexual crime and had secreted it in his duffle bag”); Wylie, 244 A.D.2d at 251 (“police had probable cause to believe that the bag contained Continued on next page… 32 Indeed, in People v. Mack, 26 N.Y.2d 311 (1970), this Court upheld a similar protective search of suspected burglars in the absence of such “tangible evidence.” In Mack, officers received word of three burglaries committed in the area that day and a description of the suspects, and observed two men, who generally fit the description, acting furtively as they entered and exited three buildings. Mack, 26 N.Y.2d at 312-13. The officers detained and conducted a protective search of the men, and recovered a revolver from the defendant’s coat pocket. Id. at 314. On appeal, the defendant challenged the validity of the anonymous description. This Court found, “[E]ven absent the [] description, the knowledge of the occurrence of three burglaries in the area that day, coupled with the furtive conduct of the defendant and his companion, was sufficient to formulate a reasonable suspicion to justify the detention.” Id. at 315. In affirming the concomitant right to conduct a protective search, this Court held: Where a police officer detains an individual whom he reasonably suspects has committed a crime such as forgery, policy, gambling or the like, depriving the police officer of the right to frisk, unless he has some other information to formulate a reasonable suspicion of danger, is understandable. Where, however, the officer confronts an individual whom he reasonably suspects has committed, is committing, or is about to commit such a serious and violent crime as … burglary, then it is our opinion that that suspicion not only justifies the detention but also the frisk, thus making it unnecessary to particularize an independent source for belief of danger. …proceeds of the theft). Yet, as stated in the Point, that degree of knowledge is not necessary. 33 Id. at 317; accord People v. Evans, 43 N.Y.2d 160, 166 (1977) (taking burglar into custody legitimatizes search), citing Peters v. New York, 392 U.S. 40, 67 (1968). It concluded, “[T]o hold otherwise would unnecessarily endanger police officers in the performance of the already hazardous task of investigating serious criminal activity.” Mack, 26 N.Y.2d at 318; see People v. Clinkscales, 83 A.D.3d 1109 (3d Dept. 2011) (burglary in progress dispatch, presence of defendant and accomplice at scene, and admission they did not live there, sufficient to justify protective search). Similarly, here, the officers responded to a burglary in progress, the superintendent signaled for the officers to stop defendant and Sanchez, and neither suspect could explain their presence—facts that would justify an intrusive protective search of their persons even in the absence of arrest. Those facts, plus the fact that defendant’s purse was large enough to contain a firearm and had significant weight to it, were more than sufficient to justify the officers’ reasonable belief that the purse may contain a weapon, and authorize the de minimus additional search of her purse incident to her valid arrest. For the same reasons, it was unnecessary for the officers to have expressly articulated their apprehension. An officer does not have to testify as to his concern for safety as long as such concern would be objectively reasonable. People v. Moore, 32 N.Y.2d 67, 72 (1973) (“[W]e attach no significance to the fact that at the suppression hearing the arresting officer did not articulate any feeling of fear for his own safety or for the safety of others at the time of the search”). “[T]hat [the officers] had reason to suspect the presence of a [weapon] at that moment is enough.” 34 Bowden, 87 A.D.3d at 405; cf. Mack, 26 N.Y.2d at 317 (upholding protective search even though the officer “could not particularize his belief of danger” in burglary investigation).16 Regardless, here, Sgt. Manzari testified that he took certain actions “for safety reasons,” including having the superintendent moved to safety (A.23), an action that would not seem warranted for trespass alone. And, the arresting officer took the purse from defendant upon arrest, noticed it appeared weighted down, and searched it (A.25, 30). She did not leave it in defendant’s possession. There is ample record support, then, for the hearing court’s affirmed findings that the officers were apprehensive and took reasonable precautions. Cf. People v. Watkins, 256 A.D.2d 159 (1st Dept. 1998) (“the requisite exigency was readily inferable from the officers’ testimony”). 16 In Gokey, the prosecution conceded that the searching officers had no fear the defendant was armed. Id. at 313. No such concession was made here. The other cases upon which defendant relies are equally inapposite. In People v. Warner, an officer arrested the defendant for turnstile jumping, “asked her to put her purse on the floor so that she could be handcuffed,” searched the purse and recovered a loaded gun. Warner, 94 A.D.3d 916, 916-17 (2d Dept. 2012). The court found no exigency because the search was not “necessary to prevent the destruction of evidence,” “there was nothing to suggest the presence of a weapon,” “the defendant was handcuffed before” the search, and it “was no longer in her control.” Id. at 917. In People v. Hendricks, an officer arrested defendant for trespassing, held him for ten minutes, testified that the situation was “under control,” and, upon searching defendant’s pants, found and opened a paper bag containing narcotics which he conceded could not have held a weapon. Hendricks, 43 A.D.3d at 362-64. In People v. Evans, officers saw three men smoking a marihuana cigarette, which one threw away; four officers surrounded and handcuffed the men, while one opened defendant’s backpack and found a gun and narcotics. Evans, 84 A.D.3d 573, 574 (1st Dept. 2011). The court found “no indication that the officers feared for their safety” or believed the bag contained narcotics where “defendant was arrested simply for smoking marijuana in public,” and “defendant and his friends at no time behaved in an aggressive or hostile manner.” Id. None of these cases bears even remote similarity to this burglary investigation. 35 Defendant’s remaining arguments represent factual disputes that are not properly before this Court. See Harrison, 57 N.Y.2d at 477; McRay, 51 N.Y.2d at 601. Sgt. Manzari’s hearing testimony that defendant was “cooperative” during the arrest is meaningless. Counsel’s last question of Sgt. Manzari was, “At this point, [defendant] is being cooperative?” That question did not give Sgt. Manzari the chance to explain what he meant; when he said, “Yes,” he could have meant defendant did not resist arrest (A.26). Of course, the record reflects defendant was uncooperative since she lied repeatedly to Officer Aldas regarding her purpose in being there (A.17-18). The officers had no obligation to risk their safety simply because defendant also was not behaving belligerently. Likewise, the presence of six officers on the scene at the time of the arrest did not eliminate the exigency. According to Sgt. Manzari, of the officers there, he was distracted coordinating responding units, as another officer stopped and spoke with the superintendent (A.17, 23). Officers Barnes and Cruz had arrived just as the arrest took place, and were standing about six feet away from the arrestees (A.30, 32). That left Officers Pagan and Aldas to control the two suspects.17 In sum, this case is nothing like the police-controlled arrest scene in Gokey where no interpretation of the evidence would permit a finding of exigent circumstances. 17 To distance herself from the burglary investigation, defendant argues, for the first time, that the “purported burglars” were also “reported outside the building on a rear fire escape and not in the lobby” (Brief for Defendant-Appellant, pp. 39-40). Aside from this argument being unpreserved, it is also a factual issue that was irrelevant to the disposition of this motion. That burglars entered an apartment through the fire escape does not mean they utilized the same method of egress. Recognizing that, Sgt. Manzari sent officers to conduct a vertical canvass to see if anybody else was walking through the building (A.24). 36 B. The Trial Court Did Not Abuse Its Discretion As A Matter Of Law In Declining To Reopen The Suppression Hearing. The trial court providently declined to reopen the suppression hearing. Defense counsel’s application relied on the truncated (direct) trial testimony of Officer Pagan that defendant “was handcuffed and the bag was on the floor” before the search, and Sgt. Manzari’s trial testimony, which, counsel argued, established that defendant “d[id not] fit the description” of the burglars, since she was “not a male Latino,” thereby removing the exigency justifying the search (A.87, 88-89). Yet, defendant was aware of these allegedly new facts at the suppression hearing and could have revealed them at that time, so she was not entitled to a reopened hearing. Regardless, the court correctly held, “[W]hether or not she actually was handcuffed,” and “whether or not [defendant] fit the description of the burglary call,” it still created a safety issue for the officers as they effectuated her arrest (A.89-90). Pursuant to CPL § 710.40(4), “If after a pre-trial determination and denial of the [suppression] motion the court is satisfied, upon a showing by the defendant, that additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion, it may permit him [or her] to renew the motion … during trial.” People v. Clark, 88 N.Y.2d 552, 555 (1996) (emphasis in original). This standard requires “the facts asserted be ‘pertinent’ to the issue” presented at the suppression hearing such that they “would materially affect or have affected the earlier [] determination,” and could 37 not have been discovered before the earlier denial of the motion. Clark, 88 N.Y.2d at 555. The denial of such an application is reviewed for abuse of discretion as a matter of law. Id. at 555-56; People v. Miller, 65 N.Y.2d 502, 511 (1985); People v. Fuentes, 53 N.Y.2d 892, 894 (1981). The trial court properly held that defendant has failed to present any newly discovered facts entitling her to a reopened hearing. Defendant already knew of the facts she purportedly discovered for the first time at trial. If, for instance, defendant had been handcuffed before her bag was searched, as she now claims, she presumably would have known that fact at the suppression hearing. Her election not to testify to those facts at that time cannot justify reopening the hearing. See People v. Velez, 39 A.D.3d 38, 43 (2d Dept. 2007) (defendant “certainly could be presumed to know the conduct of the police in placing him on the ground, handcuffing him, and searching him”); accord People v. Knowles, 12 A.D.3d 939 (3d Dept. 2004); People v. Morales, 281 A.D.2d 182 (1st Dept. 2001); People v. Mitchell-Benetiz, 168 A.D.2d 994 (4th Dept. 1990). Defendant also had the Sprint report containing the burglars’ description prior to the suppression hearing. In fact, at the hearing, counsel cross-examined Sgt. Manzari as to whether he recalled the description of “two male Latinos” “between 5’9” and 5’11”,” but counsel did not show Sgt. Manzari the report. That resulted in Sgt. Manzari’s answer that he could not recall the description (A.21-22). Then, counsel cross-examined Officer Barnes, handed him the Sprint report, and elicited testimony that one burglar was a 5’9” or 5’11” “male with a white t-shirt, dark hair” (A.37-38). 38 Defendant did not try to admit the Sprint report into evidence, notwithstanding its admissibility. See CPL § 710.60(4) (“hearsay evidence is admissible” at the hearing). Moreover, had counsel simply handed the report to Sgt. Manzari at the hearing, rather than at trial, she presumably would have obtained the same testimony regarding the description. Consequently, defendant cannot possibly claim on this appeal that the contents of that report constitute new facts that she could not have discovered with reasonable diligence before the determination of the suppression motion. Regardless, as the trial court found and the Appellate Division confirmed, the defendant did not present any additional pertinent facts that would materially affect the validity of the search (A.4, 89-90). Jimenez, 98 A.D.3d at 886. Instead, the facts described at trial mirrored the hearing testimony in every “pertinent” detail. Just like the hearing testimony, Officer Pagan described responding to a call of a burglary in progress at 2255 Barker Avenue, a Clean Halls building, conversing with Sgt. Manzari and Officer Aldas, and from that conversation, placing defendant under arrest by taking the purse off her shoulder and searching it (A.78-80). Indeed, her testimony, and the exhibit of the purse introduced through her testimony, only pertinently differed in that they further supported the arresting officers’ reasons for concern. Officer Pagan described how defendant had initially, and suspiciously, held the purse tight to her body as Officer Pagan began to frisk her (A.79). And, the purse was very large, with the pistol resting atop its contents (People’s Exhibit 1; A.82). Clearly, then, the pistol was within grabbable reach of both defendant and Sanchez. See Gokey, 60 39 N.Y.2d at 312; cf. Smith, 59 N.Y.2d at 458-59 (facts that would disallow a search of a closed container include if “if it is apparent that it is so securely fastened that the person arrested cannot quickly reach its contents,” “the person arrested makes unmistakably clear that he will not seek to reach the contents,” or “the container is so small that it could not contain a weapon or evidence”). Nonetheless, defendant relies on Officer Pagan’s testimony that she patted defendant down for weapons, noticed her holding the bag tightly to her body, took the bag off her shoulder, placed it on the ground momentarily, handcuffed her, finished patting her down, picked up the bag, and opened it (A.79), as pertinent evidence that no exigency could exist (Brief for Defendant-Appellant, pp. 43-45). Defendant ignores, however, Officer Pagan’s immediate equivocation when she added, “I believe I handcuffed [defendant] before” searching her purse (A.79).18 Regardless, as the trial court providently found in declining to reopen the hearing, a safety issue still existed for the officers “whether or not [defendant] actually was handcuffed,” before the search (A.89-90). See Johnson, 86 A.D.2d at 168 (“Even assuming defendant had been handcuffed, the search would still have been proper”), aff’d for the reasons stated below 59 N.Y.2d at 1016; accord Smith, 59 N.Y.2d at 458. Accordingly, that fact is not pertinent. 18 Similar to Johnson, the record here strongly supports the conclusion that Officer Pagan was confused in her answer on direct examination (A.79). Johnson, 86 A.D.2d at 167. Tellingly, after the court denied the motion to reopen, defense counsel on cross-examination did not ask a single question to clarify Officer Pagan’s answers on this issue. 40 “The arrest and search of the [purse] were for all practical purposes conducted at the same time and in the same place.” Smith, 59 N.Y.2d at 459). Whether Officer Pagan opened the purse immediately upon removing it from defendant’s shoulder, or took the bag and put it down momentarily in order to handcuff defendant before opening the bag, the arrest and the search occurred simultaneously. Officer Pagan simply did not have the opportunity to reduce it to her exclusive control. See Johnson, 86 A.D.2d at 168; Estrella, 288 A.D.2d at 134 (“Although defendant had been handcuffed, the bag, which was at defendant’s feet, had not been reduced to the exclusive control of the police”); cf. Wiley, 244 A.D.2d at 451 (“a determined arrestee may use means other than his hands—such as kicking or shoving the arresting officer—to disrupt the arrest process”). Nonetheless, defendant focuses on the language in Gant holding that a valid vehicle search-incident-to-arrest requires that “the arrestee is unsecured and within reaching distance” of the vehicle at the time of the search,” to suggest that (outside the vehicle context) handcuffing an arrestee is equal to securing him or her (Brief for- Defendant-Appellant, p. 43, quoting Gant, 556 U.S at 343). That is not so. Nowhere in the Supreme Court opinion is the term “secured” and “unsecured” utilized in that manner; instead, the opinion equates the term “secured” with removing the arrestee from the location of arrest, and placing him or her in a patrol car. Gant, 556 U.S at 337, 343, 344. Underlying that conclusion is the principle, derived from Chimel (and adopted by this Court), that “[i]f there is no possibility that an arrestee could reach 41 into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent.” Id. at 339 (emphasis added); accord United States v. Chadwick, 433 U.S. 1, 15 (1977) (where “there is no longer any danger that the arrestee might gain access” … “a search of that property is no longer an incident of the arrest”). As this Court has often recognized, merely handcuffing an arrestee during a street encounter does not erase that possibility. See Johnson, 86 A.D.2d at 168, aff’d for the reasons stated below 59 N.Y.2d at 1016; Smith, 59 N.Y.2d at 458; cf. United States v. Sanders, 994 F.2d 200, 209-10 (5th Cir. 1993) (“The limitations of handcuffs’ effectiveness are widely known to law enforcement”). The search of defendant’s purse, as described by Officer Pagan, is also a far cry from the circumstances presented in Gokey. In Gokey, five officers stopped the defendant after obtaining a tip he was traveling with marihuana, allowed him to keep a duffel bag he was carrying between his feet while he was frisked, handcuffed him behind his back, called over a police dog who reacted, and then unzipped the bag and found the marihuana. Gokey, 60 N.Y.2d at 311. This Court noted that the People had not asserted the presence of any exigency, and, indeed, had “concede[d]” the lack of police suspicion or concern that he was armed. Id. at 313. It added, “[T]he police have not asserted” that the search was justified “by the need to preserve evidence.” Id. And, it found the officers’ conduct leading up to the search confirmed the absence of any exigency, since the officers permitted the defendant to “keep the bag” while being frisked, and, by the time of the search, had handcuffed the defendant behind his back 42 and surrounded him with “five police officers and their dog.” Id. at 314. By comparison, here, the exigency was still readily apparent at the time of the search. Nothing in Officer Pagan’s testimony challenges the conclusion that the officers were responding to a burglary in progress, an inherently dangerous crime, and had reason to believe defendant and Sanchez might be connected in some way to the burglary. Nor does her testimony challenge the conclusion that Officer Pagan had no assistance in securing defendant. Officer Pagan’s testimony also added reason for concern, since defendant suspiciously held the purse tight to her body as Officer Pagan began to frisk her for weapons (A.79). That Officer Pagan felt the need to remove the purse from defendant’s shoulder and place it on the ground (away from defendant’s hands) before finishing the frisk for weapons does not suggest, as in Gokey, that she was permitting the defendant to “keep the bag.” To the contrary, it only supports the conclusion that Officer Pagan had become even more concerned that defendant might be hiding something dangerous in the purse. The circumstances, then, further supported the arresting officers’ “reasonable belief that the suspect may gain possession of a weapon … located in the bag” Gokey, 60 N.Y.2d at 311. Moreover, defendant’s argument utterly fails to account for the second suspect, Sanchez, who was not secured, and was within reaching distance of the purse. Even assuming defendant was handcuffed, the unchallenged hearing record reflects that Sanchez was stopped by Officer Aldas, not handcuffed, and was standing only a few feet away from the purse. In other words, whether or not defendant was handcuffed 43 before the search, it cannot be said that “there [was] no longer any danger that the arrestee or a confederate might gain access” to the purse, because, undisputedly, Sanchez still could have reached the firearm. Belton I, 50 N.Y.2d at 449. Next, defendant cites Sgt. Manzari’s testimony regarding the burglary suspects’ description as pertinent evidence that neither defendant nor her companion “remotely met the description,” and so the search of her purse could not have been connected with that crime (Brief for Defendant-Appellant, pp. 39-41). Yet, this argument is unpreserved. In the motion to reopen, counsel claimed that the radio run of the burglary was for “two male Latinos, [5’8” to 5’11”], age 30,” and argued that since defendant “is clearly not a male Latino,” it removed any exigency (A.89). She did not argue, as she does now, that Sanchez and she did not match the description of either of the suspects. The trial court, in turn, only decided, “whether or not [defendant] fit the description of the burglary call,” the police “were responding to a burglary,” “directed to the defendant and [] Sanchez by the super[intendent],” and the purse remained “in very close proximity” to defendant, creating a “safety” risk for the officers (A.89-90). Since defendant’s argument below focused on her own comparison to the description, she did not put the court on notice of the argument regarding Sanchez, the court did not decide that issue, and this Court cannot consider it. Defendant also failed to provide the trial court with pertinent facts necessary to support this argument, and failed to supply a record on appeal sufficient for this Court’s review. Unlike at a suppression hearing, on a motion to reopen, the burden 44 rests exclusively with the defendant to make a “showing” of “additional pertinent facts” that “would materially affect” the earlier determination. CPL § 710.40(4); Clark, 88 N.Y.2d at 555. Compare People v. Berrios, 28 N.Y.2d 361, 367 (1971) (at a suppression hearing, the People have the initial burden to show that the police conduct was reasonable, while defendant bears the ultimate burden of proving the illegality). Here, defendant effectively admits she has failed to establish those pertinent facts; instead, she mistakenly argues that any “ambiguity … must be held against the People” (Brief for Defendant-Appellant, p. 40 n. 7). As stated, the trial court never decided, “whether or not [defendant] fit the description of the burglary call” (A.89). It certainly never “gave up on the idea that [defendant] could be implicated in the burglary” as defendant contends (Brief for Defendant-Appellant, pp. 40-41). In denying the motion to reopen, the trial court reiterated its reasoning in support of the right of the officers “to stop and inquire” as to defendants’ reasons for being in the Clean Halls building (A.90). It noted that the questions asked “were not accusatory in nature,” but were “investigatory,” and added that, at that point, “She could have been a [resident] witness to the burglary” (A.90). The latter remark, contrary to defendant’s claim, addressed the issue of whether the description, even if not a match to defendant, was pertinent to the court’s previous DeBour analysis. It had no bearing on the question of whether the officers had reason to believe that defendant’s bag may contain a weapon at the time of her arrest (the search took place after the officers learned that defendant was trespassing, elevating 45 their suspicion of a link to the burglary in progress, observed that defendant was holding the bag to tight to her body and refusing to release it, and felt that it was heavily weighted down). Hence, the trial court concluded that there was still a “safety” risk for the officers effectuating the arrest without needing to decide this issue (A.90). The record is unclear whether Sanchez and she met the description of the suspects. Sanchez, to the “best of [Sgt. Manzari’s] recollection,” was a 5’8” tall Latino man in his “mid to late twenties” (A.73), matching a suspect described in the radio call (A.70-71). It was only upon being supplied with an unknown document by defense counsel that Sgt. Manzari stated that “it [the document] says five-feet-two,” in describing Sanchez, and that it refreshed his recollection to that extent (A.74). As to defendant, the record reflects she is a Latino woman, not a Latino man as described in the radio call, but otherwise does not reflect her height or age.19 The trial court also did not decide “whether or not [defendant] fit the description”; instead it found that fact did not matter. Since the trial court made no factual determination regarding whether either defendant or Sanchez met the descriptions of the burglary suspects, and since no record on appeal otherwise reflects those essential facts, this Court cannot conclude that the trial court erred in denying the motion to reopen. Cf. People v. McLean, 15 N.Y.3d 117, 121 (2010) (“the lack of an adequate record bars review on 19 To support her argument that she is “several years older,” 5’5” tall, and has “blond hair,” defendant relies on a “Crims Appearance History” form (A.8a; Brief for Defendant- Appellant, pp. 11-12, 40). This document is not properly part of the appellate record. It is not clear how this document was obtained, nor can its accuracy be verified. 46 direct appeal not only where vital evidence is plainly absent … but wherever the record falls short of establishing conclusively the merit of the defendant’s claim”), citing People v. Kinchen, 60 N.Y.2d 772 (1983). Even assuming this Court disagrees regarding the lack of pertinence of this additional testimony, the only available remedy is to remand for a reopened hearing, and not suppression as defendant seeks. Generally, “evidence subsequently admitted on trial cannot be used to support” or attack “the determination of the suppression court denying [a] motion to suppress.” People v. Gonzalez, 55 N.Y.2d 720, 721-22 (1981), cert. denied Gonzalez v. New York, 456 U.S. 1010 (1982); People v. Abrew, 95 N.Y.2d 806, 808 (2000) (“defendant may not rely on trial testimony to support his challenge to the court’s ruling at the Wade hearing”); People v. Giles, 73 N.Y.2d 666, 671-72 (1989); People v. Wilkins, 65 N.Y.2d 172, 180 (1985); People v. Dodt, 61 N.Y.2d 408, 417 (1984). Nor can defendant avail herself of the apparent exception to this rule enunciated in People v. Delamota, 18 N.Y.3d 107 (2011). There, police utilized a pretrial photographic identification procedure in which the victim’s son translated for the investigating detective. Delamota, 18 N.Y.3d at 111. The hearing court denied suppression because the son “did not know” the defendant, and, hence, his involvement could not have tainted the procedure. Id. at 112. At trial, the son testified that he had known the defendant for a “long time,” and the defense moved to reopen the hearing, a motion that was denied. Id. On appeal, the People effectively conceded the accuracy of the son’s testimony and argued, instead, that “even if the 47 photo array was unduly suggestive, suppression [was] not warranted since suggestiveness by a civilian is not illegal.” Id. at 117. Rejecting that claim, this Court held that the trial court erred in denying the motion to reopen because the son’s testimony “fatally undermined the suppression court’s rationale,” and ordered that the identification be suppressed. Id. at 118-19. That decision cannot be duplicated here. Unlike in Delamota, the question of the validity of the police conduct was not an issue at this trial. In its final instructions, the court informed the jury, [“Matters involving the … arrest and searches, are questions of the law … These are not questions to be decided by you, the jury” (Supp.A.56-57). And, the prosecutor may well have questioned her witnesses differently to clarify certain issues (such as asking Officer Pagan, inter alia, if she believed the bag felt heavy, or how she had handcuffed defendant) had she known that the facts elicited therefrom would be used to challenge the hearing court’s earlier determination (compare Brief for Defendant-Appellant, pp. 42 [“the People adduced no evidence that any of the officers feared for their safety”], 42 n.8 [Officer Pagan “never testified that the bag felt unusually heavy”], 44 [the People “did not elicit whether [Officer] Pagan had cuffed [defendant] in the front or in the rear”]). Moreover, any testimony that Officer Pagan feared for her safety when confronting defendant and her associate Sanchez likely would have been inadmissible as prejudicial and irrelevant at trial. See Giles, 73 N.Y.2d at 671 (it was “not a failure of proof by the People that resulted in evidence of the legality of the … search remaining undeveloped--evidence perhaps not strategically useful to be advanced at 48 trial or even inadmissible as irrelevant or prejudicial at trial before a jury”). Moreover, if the trial court erred in its analysis, as defendant claims, the only corrective action to take would be to remand for a reopened suppression hearing. See id. at 671-72 (“If an error of law is committed by the hearing court which directly causes the People to fail to offer potentially critical evidence a rehearing should be ordered”). The credited hearing testimony of Sgt. Manzari and Officer Barnes, and the trial testimony of Sgt. Manzari, Officer Barnes, and Officer Aldas, established that, based on their personal observations, each observed Officer Pagan remove the purse from defendant’s shoulder and immediately open it. Sgt. Manzari testified that after Officer Pagan saw the firearm, he told her to safeguard it and “place [defendant] in handcuffs along with [] Sanchez.” By comparison, Officer Pagan testified equivocally that she “believe[d]” she handcuffed defendant before opening the bag (A.79). No lower court reached a factual determination as to which narrative was correct. Instead, in deciding defendant’s renewed motion, the trial court reasoned that “whether or not [defendant] was handcuffed,” the result would be the same (A.89-90). Accordingly, this Court cannot suppress the firearm, but can only remand for a reopened suppression hearing, a remedy defendant does not request on this appeal. 49 POINT TWO THE TRIAL COURT DID NOT ABUSE ITS DISCRETION AS A MATTER OF LAW IN DENYING DEFENDANT’S FOR-CAUSE CHALLENGES OF PROSPECTIVE JURORS. In the first round of jury selection, defense counsel asked the panel of prospective jurors a hypothetical. Her inquiry assumed that the law prohibited “wearing a black shirt on Thursday after 2 p.m.” (a prospective juror, that afternoon, was wearing a black shirt). Counsel asked, “[W]hat if [the accused] did not know that that was a crime, for her to wear the black shirt on Thursday,” “[W]hat … could be done to prove that [the accused] did not know,” and “[W]ould [the testimony of the accused] be sufficient?” (A.95; see also A.100). Prospective jurors Two (Ms. Wircinski), Three (Ms. Bellamy), Four (Ms. Marte), Ten (Mr. Simpson), Fifteen (Ms. Montero), and Sixteen (Mr. Rubio), expressed opinions that they would need more than just the accused’s testimony (A.95-97). Ms. Wircinski added, “I thought ignorance of the law is no excuse” (A.96). The court instructed the prospective jurors, “It’s not the quantity of the evidence, it’s the quality of the evidence” and “there are some times where the testimony of one person may be enough” (A.97). Counsel repeated her questions. Ms. Bellamy changed her mind, while Ms. Marte, Mr. Rubio, and Ms. Montero stated, in substance, “[it] depends” on the case (A.97-100). Counsel did not question Ms. Wircinski or Mr. Simpson further. Counsel challenged for cause “Ms. Marte and Mr. Rubio” (but not Ms. 50 Montero) because “they both, I could be wrong, they both said they need more than one” witness (A.109). The court denied the challenges. If found the defense questions “ambiguous” and remarked, “[P]eople always want to hear as much as they can, but they’re not always going to hear it.” The court added, “[T]hey didn’t necessarily … ha[ve] to have more” but only said they “would like to hear more if there was more” (A.110). The Appellate Division, in turn, found the “court properly exercised its discretion in denying” these challenges where the “colloquy between counsel, the court and each panelist, viewed as a whole, did not cast doubt on either panelist’s ability to follow the court’s instructions and render an impartial verdict” (A.4). Jimenez, 98 A.D.3d at 886, citing People v. Roberson, 249 A.D.2d 148, 149-50 (1st Dept. 1988). That affirmed discretionary decision, which is supported by the record, may not be disturbed by this Court. A party may challenge for cause a prospective juror on the ground, inter alia, that “he [or she] has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial.” CPL § 270.20(1)(b); see People v. Johnson, 94 N.Y.2d 600, 611 (2000) (CPL § 270.20[1][b] “authorizes parties to seek dismissal of a prospective juror based on ‘actual bias’”); People v. Torpey, 63 N.Y.2d 361, 366 (1984). Every prospective “juror inevitably brings to the jury room a lifetime of experience” including some predispositions, of varying intensity, “that will necessarily inform her assessment of the witnesses and the evidence.” People v. Arnold, 96 N.Y.2d 358, 362 (2001); People v. Williams, 63 51 N.Y.2d 882, 885 (1984). “It is only when it is shown that there is a substantial risk that such predispositions will affect the ability of a particular juror to discharge his [or her] responsibilities … that his [or her] excuse is warranted.” Williams, 63 N.Y.2d at 885 (emphasis added); cf. Torpey, 76 N.Y.2d at 368 (“virtually all ‘actual’ bias cases involve a prospective juror who has formed an opinion as to the defendant’s guilt”). That determination is committed largely to the judgment and discretion of the trial court with its peculiar opportunities to make a fair evaluation. Williams, 63 N.Y.2d at 885; accord People v. Guzman, 76 N.Y.2d 1, 5 (1990). “A prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he [or she] … can be fair and impartial.” People v. Chambers, 97 N.Y.2d 417, 419 (2002) (emphasis added); accord People v. Bludson, 97 N.Y.2d 644, 646 (2001). Ipso facto, where the comments do not create such “serious doubt,” the court is not required to elicit an unequivocal declaration. The assurance of impartiality “does not require any particular expurgatory oath or ‘talismanic’ words.” Arnold, 96 N.Y.2d at 362; Johnson, 94 N.Y.2d at 614 (assurance need only be given “in some form”). Instead, the prospective juror must “express that any prior … opinions that reveal the potential for bias will not prevent them from reaching an impartial verdict.” Arnold, 96 N.Y.2d at 362; People v. Blyden, 55 N.Y.2d 73, 78 (1982). Finally, in evaluating whether a challenge should have been granted, an appellate court “must look not to characterizations or snippets of the voir dire but to the full record of what 52 the challenged jurors … actually said.” Johnson, 94 N.Y.2d at 615. The trial court properly exercised its discretion in denying defendant’s challenges for cause. Defendant failed to demonstrate a “substantial risk” that the challenged prospective jurors had any biases that would affect their ability to discharge their responsibilities in this case. Williams, 63 N.Y.2d at 885. That is because, as the Appellate Division recognized in relying on Roberson, “[t]he hypothetical posed by defense counsel” that the prospective jurors answered, “had little [to nothing] to do with the facts of the case or the law the jurors would be asked to apply.” Roberson, 249 A.D.2d at 149-50. Defense counsel’s inquiry was irrelevant to this case. In her hypothetical, counsel asked, “[W]hat if [the accused] did not know that [it] was a crime for her to wear [a] black shirt on Thursday … what would your verdict be?” She added, “Let’s say [she] didn’t know that [she] could not wear a black shirt on Thursday … [W]hat do you think could be done to prove that[?]” (A.95). When the first prospective juror answered, “maybe she needs some other people to help her make it known to me, like prove to me she didn’t know she couldn’t wear the shirt,” counsel asked every prospective juror (some individually, including Ms. Bellamy, Ms. Marte, Mr. Rubio, Ms. Wircinski, and Mr. Simpson, and then the panel) if they would need “more than one person.” Each of the individual prospective jurors who were questioned said they would. And, by their silence, the remaining prospective jurors appear to have acquiesced in their belief that they would (A.95-97). 53 As one prospective juror recognized, the hypothetical was misguided. Put in terms of this case, counsel had asked the panel whether it would acquit defendant if she, alone, took the stand and said she did not know it was illegal to possess a firearm. In response, the prospective juror remarked, “I thought ignorance of the law is no excuse” and, if not, he “definitely would need somebody else to back it up that [defendant] didn’t know” her actions were against the law (A.96-97). That prospective juror, who clearly expressed what the entire panel was thinking (and who was never questioned again, rehabilitated, or challenged for cause by defendant), answered logically, just as the prospective jurors challenged on this appeal did. It is hardly surprising the entire panel answered the hypothetical as they did, given this Court’s holding in People v. Marrero, 69 N.Y.2d 382, 384 (1987). There, this Court addressed whether a defendant can present an ignorance or “mistake of law” defense, see Penal Law § 15.20(2), to the jury when charged with criminal possession of a weapon (a loaded firearm, just as in this case). Marrero, 69 N.Y.2d at 384. It began its analysis (just like the prospective juror did), by recognizing the “common-law maxim that ignorance of the law is no excuse.” Id. at 385. It reasoned that allowing the defense “does not make sense and would create a legal chaos based on individual selectivity.” Id. at 389. It also acknowledged the “more troublesome … opportunities for wrongminded individuals to contrive [this defense] in bad faith” (hence, the prospective jurors’ apt belief that defendant should have to substantiate her claimed ignorance of the law). Id. at 392. Thus, it held that the defense exists 54 “only where the law was ambiguous and the ignorance or mistake of law negated the requisite intent.” Id. at 391. It also held the defense “should not be recognized” for “the forbidden act of possessing a weapon,” a crime it found “clear and unambiguous.” Id. Since the defense could not present an ignorance or mistake of law defense to the jury, counsel’s hypothetical question of whether the prospective jurors would need to hear more witnesses to prove that defense was irrelevant. While the prosecutor and the trial court understood that counsel meant to ask the panel whether defendant’s testimony that she had no knowledge she possessed the firearm would be sufficient— a mistake of fact defense (Penal Law § 15.20[1][a])—she did not ask that question.20 The prospective jurors’ failure to decipher “what was being asked of them in no way demonstrated that they would be unable to apply the law as instructed.” Roberson, 249 A.D.2d at 50. Compare Johnson, 94 N.Y.2d at 614 (predispositions should relate to the “particular facts of the case” or “to a party”); People v. Eutsey, 290 A.D.2d 396 (1st Dept. 2002) (juror did not exhibit inability to follow instructions or bias when expressing confusion as to counsel’s “misleading discussion of accessorial liability”); People v. Gonzalez, 216 A.D.2d 412, 413 (2d Dept. 1995) (defendant’s for-cause 20 On summation, defense counsel argued that defendant did not know there was a gun in her purse, a mistake of fact defense, and that someone “hot potatoed” [sic] it in there (A.114-15, 117). She also argued that the People had failed to establish the criminal trespass because Officer Aldas failed to write down his conversation with defendant, and failed to photograph the “no trespassing” sign (A.115-16). Counsel did not present a mistake of law defense to either charge (A.112-18). 55 challenge properly denied where prospective juror “expressed his view that if a person takes out a gun, then that person intends to use it” because “the issue for the jury … was not whether the defendant used the gun”), and People v. Norwood, 177 Misc.2d 172 (Sup. Ct. Kings Co. 1998) (declining to exclude prospective juror in possession of a controlled substance trial who “expressed reservations with marijuana possession, a crime which is not relevant to the charges in this case”), aff’d on other grounds 279 A.D.2d 638 (2d Dept. 2001), with People v. Johnson, 17 N.Y.3d 752, 753 (2011) (reversing where the prospective “juror expressed uncertainty concerning her ability to fairly consider a major issue” in the case). The challenged prospective jurors also affirmed they could be fair and impartial. The trial court asked the panel at the beginning of voir dire, “Is there any reason why you cannot be a fair and impartial juror in this case?” (Supp.A.58). Neither Ms. Marte nor Mr. Rubio professed a reason they could not be. After selecting the panel of 16, the trial court gave them preliminary instructions to see if they “can and will follow the law” on the presumption of innocence, the burden of proof, the right of defendant not to testify, deliberations, the need for a unanimous verdict, and the need to not consider sympathy or punishment in their deliberations (Supp.A.59-63). Neither prospective juror expressed any difficulty in doing so. When the trial court questioned them individually as to whether they “could be fair and impartial,” both answered “Yes” (Supp.A.64-73). There was no risk, let alone a “substantial risk,” then, that these prospective jurors suffered from some bias or predispositions which would 56 affect their ability to decide this case. Williams, 63 N.Y.2d at 885. Accordingly, since no actual bias was evinced, there was no need for the court to administer an expurgatory oath or sustain the challenges for cause. Still, defendant argues that allegedly equivocal answers given by the challenged prospective jurors after the court issued the instruction—“It’s not the quantity of the evidence; it’s the quality of the evidence. So there are some times where the testimony of one person may be enough” (A.97)—rendered them unfit to serve (Brief for Defendant-Appellant, pp. 49-50). This assertion is meritless. On reviewing the “full record,” Johnson, 94 N.Y.2d at 615, it is clear the prospective jurors continued to have the same unbiased, logical, and non-disqualifying concern as before the instruction was given. That concern remained linked to the ongoing hypothetical presented by defense counsel, to wit, “if [the accused] said I did not know … on Thursday I cannot wear a black shirt” and “explained why … would that be sufficient?” (A.100). In response to that hypothetical, Ms. Marte, Mr. Rubio, and Ms. Montero (who later went unchallenged by the defense) all agreed that it might not be sufficient without additional witnesses, but each added it “depends” on the case (A.98-100). Cf. Marrero, 69 N.Y.2d at 392 (recognizing the source of this concern as the “more troublesome … opportunities for wrongminded individuals to contrive [this defense] in bad faith”). As the trial court recognized, in light of the highly ambiguous questions presented by the defense, the prospective jurors’ answers at most reflected an 57 unremarkable desire “to hear as much as they can” (A.110). Thus, Ms. Marte answered the question, “even if we say it’s not how much, it’s just the quality of the evidence, that’s not sufficient for you?” with “Sometimes it’s okay, but sometimes some cases it depends on the case.” Mr. Rubio went further, stating, first, “It depends on the case,” then, moments later, answering, “As long as the person is credible, that’s fine” (A.98-99). Upon being asked the follow-up question, “if it’s just one person, does credibility come into it,” he added, “Without a doubt. It can. It’s important” (A.99). Clearly, their answers reflected a willingness to follow the court’s instructions and consider a defense presented by a single witness, while also acknowledging their desire “to hear more if there was more,” as the trial court held (A.110). See Roberson, 249 A.D.2d at 150 (“difficulty deciphering what was being asked of them in no way demonstrated that they would be unable to apply the law as instructed”); People v. Rivera, 70 A.D.3d 1177, 1179 (3d Dept. 2010) (challenge aptly denied “when measured against other assurances given by the juror that she could be fair and there being no evidence … that she would not comply with the court’s legal instructions”). Even assuming, arguendo, defendant could attribute the prospective jurors’ concern about the need to substantiate a mistake of law defense to an overarching concern regarding only hearing from one witness, that still would not constitute a disqualifying bias. “Defense counsel’s questioning … excluded the fact that, at trial, the jury would also hear cross-examination of the People’s witnesses.” People v. Stroman, 6 A.D.3d 818 (3d Dept. 2004); People v. Burts, 237 A.D.2d 155 (1st Dept. 58 1997); People v. Archer, 210 A.D.2d 241 (2d Dept. 1994). The examination of those witnesses could have substantiated her client’s testimony regarding her purported lack of knowledge (indeed, Officers Pagan and Barnes testified at trial to defendant’s statement, “It’s not mine” [Supp.A.2, 37]). Hence, the prospective jurors’ answers remained impartial in light of the evidence adduced at the trial. CPL § 270.20(1)(b). CONCLUSION THE ORDER APPEALED FROM SHOULD BE AFFIRMED. Respectfully Submitted, ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent BY: _________________ NOAH J. CHAMOY Assistant District Attorney JOSEPH N. FERDENZI NANCY D. KILLIAN NOAH J. CHAMOY Assistant District Attorneys Of Counsel June 19, 2013