People v. Cabrera

215 A.D.2d 216, 626 N.Y.S.2d 482, 1995 N.Y. App. Div. LEXIS 5035

Opinion

Order, Supreme Court, New York County (Ronald Zweibel, J.), entered December 13, 1993, which, insofar as appealed from, granted defendant’s motion to suppress physical evidence, unanimously affirmed.

Evidence at the suppression hearing was that the arresting officer was on patrol in plainclothes in an unmarked vehicle when he observed defendant enter the courtyard of an abandoned brownstone in a drug-prone neighborhood and hide a large brown paper bag behind a large slab of concrete that was leaning against the building. As defendant started to walk out of the courtyard, the officer got out of his vehicle and asked defendant what he had been doing in the courtyard, to which defendant answered that he had been urinating. Leaving defendant to wait with his partner, the officer went into the courtyard, where he found the brown paper bag, which contained numerous vials of crack-cocaine, and did not detect any odor or visible evidence of urine. We agree with the suppression court that defendant’s efforts to hide the bag do not show that he abandoned it, but rather, that he retained an expectation of privacy in it, and that there was no probable cause to either seize or search it (see, People v Kelly, 172 AD2d 458, affd 79 NY2d 899). Concur—Ross, J. P., Nardelli, Williams, Tom and Mazzarelli, JJ.