People v. Hawkins

Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered November 14, 2007, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree, and sentencing him to a term of 3V2 years, unanimously affirmed.

The court properly denied defendant’s suppression motion. Defendant argued only that the pistol found in the trunk of his car should be suppressed as the fruit of an unlawful arrest, and that claim was without merit because he was at the very least lawfully arrested for driving with a suspended license. Defendant failed to argue, as he does on appeal, that the search of the car was not a lawful search incident to arrest or a lawful search under the automobile exception (see Arizona v Gant,

While the prosecutor and court briefly alluded to the search of the car, the court specifically noted that defendant had focused on the issue of probable cause for the arrest, and that as a result, the record regarding the circumstances of the search had not been fully developed. Thus, the court did not “expressly decide [ ]” the issue “in response to a protest by a party” (CPL 470.05 [2]; see also Jimenez, 109 AD3d at 764 ; People v Perkins, 68 AD3d 494 , 495 [1st Dept 2009], lv denied 14 NY3d 891 [2010]). If anything, the court expressly declined to decide the issues defendant raises for the first time on appeal. Accordingly, we find that defendant did not preserve his present claims, and given the limited record presented here, we decline to review them in the interest of justice. Concur— Mazzarelli, J.P, Friedman, Richter, Manzanet-Daniels and Gische, JJ.