This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 33
The People &c.,
            Respondent,
        v.
Nelson Miranda,
            Appellant.




          Frances A. Gallagher, for appellant.
          Andrew E. Seewald, for respondent.




MEMORANDUM:
          The order of the Appellate Term should be affirmed.
          Defendant made a motion to suppress physical evidence
"seized from his person" on the basis that the property seized
was the fruit of an unlawful arrest.   At the conclusion of the
suppression hearing, the court found probable cause for the

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arrest based on the officers' "observations over a nearly 30-
minute period," during which defendant attempted to damage the
locks on three different bicycles using a tool in a "sawing"
motion.    As one officer stopped defendant, defendant dropped a
hacksaw.    The officer put defendant's hands on a car, handcuffed
him, and performed an initial pat down for the safety of the
officers and felt a bag on his person underneath his coat.     The
officers searched the satchel and found pliers, screwdrivers and
rubber gloves.    The hearing court concluded that the search was
incident to a lawful arrest.
            "CPL 470.05 (2) provides that a question of
            law regarding a ruling is presented in a
            criminal proceeding 'when a protest thereto
            was registered, by the party claiming error,
            at [a] time . . . when the court had an
            opportunity of effectively changing the same
            . . . or if in response to a protest by a
            party, the court expressly decided the
            question raised on appeal'"
(People v Graham, 25 NY3d 994, 996 [2015]).
            The issue argued on this appeal is whether the
warrantless search of defendant's satchel was unlawful as beyond
the scope of a search incident to arrest.    In particular,
defendant contends that the exigencies that existed at the time
of the arrest no longer existed at the time of the search because
he was handcuffed and the seizure of the satchel was outside of a
permissible full search of his person incident to arrest.
            Here, the hearing court did not expressly decide, in
response to protest, the issues now raised on appeal.      The issue


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at the suppression hearing was whether the officers had probable
cause to arrest defendant.   The hearing court's mere reference to
"search incident to a lawful arrest" is insufficient to preserve
defendant's current arguments for this Court's review.
*   *   *   *   *   *    *   *    *      *   *   *   *   *   *   *   *
Order affirmed, in a memorandum. Chief Judge DiFiore and Judges
Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

Decided March 24, 2016




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