        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

667
KA 12-02260
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TROY ROSE, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered April 30, 2012. The judgment convicted
defendant, upon a nonjury verdict, of criminal possession of a weapon
in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
following a nonjury trial of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]). We conclude that County Court
properly refused to suppress defendant’s statement to the arresting
officers, which was made without Miranda warnings. The officers’
question concerning the location of the gun did not constitute
interrogation (see People v Chestnut, 51 NY2d 14, 22-23, cert denied
449 US 1018; People v Roseboro, 124 AD3d 1374, 1375) and moreover, the
public safety exception to the Miranda rule applied to that question
(see People v Gucla, 18 AD3d 478, 479, lv denied 5 NY3d 789).

      We further conclude that the court properly refused to suppress
the gun seized from defendant’s backpack during a search incident to
defendant’s lawful arrest (see People v Smith, 59 NY2d 454, 458-459;
People v Johnson, 86 AD2d 165, 166-167, affd 59 NY2d 1014). Here,
“the circumstances leading to the arrest support a reasonable belief
that the suspect may [have been able to] gain possession of a weapon”
(People v Gokey, 60 NY2d 309, 311; see People v Capellan, 38 AD3d 393,
394, lv denied 9 NY3d 873; see generally People v Wylie, 244 AD2d 247,
250-251, lv denied 91 NY2d 946), including defendant’s statement that
the gun was in his backpack (see People v Alvarado, 126 AD3d 803, 804-
805).

     Contrary to defendant’s contention, the court properly curtailed
                                 -2-                              667
                                                            KA 12-02260

his cross-examination of one of the officers at the suppression
hearing with respect to a confidential informant. Defendant was
arrested pursuant to a warrant, and the existence or reliability of a
confidential informant who allegedly provided information concerning
defendant’s location “had nothing to do with the legality of the
[arrest or] search and it was, therefore, irrelevant” (People v
Lourdes, 175 AD2d 958, 958; see People v Alfone, 206 AD2d 775, 776, lv
denied 84 NY2d 1028). Inasmuch as a motion to reopen the suppression
hearing would not have been successful, defendant was not denied
effective assistance of counsel based upon counsel’s failure to make
such a motion (see People v Crespo, 117 AD3d 1538, 1539, lv denied 23
NY3d 1035).

     Finally, the sentence is not unduly harsh or severe.




Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
