| People v Johnson |
| 2017 NY Slip Op 05462 |
| Decided on July 5, 2017 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on July 5, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
SYLVIA O. HINDS-RADIX
HECTOR D. LASALLE
FRANCESCA E. CONNOLLY, JJ.
2016-00436
(Ind. No. 14-00422)
v
Aaron Johnson, appellant.
Kenyon C. Trachte, Newburgh, NY, for appellant.
David M. Hoovler, District Attorney, Middletown, NY (Robert H. Middlemiss of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered December 12, 2014, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the defendant's purported waiver of his right to appeal was invalid (see People v Finnegan, 112 AD3d 847; People v Gil, 109 AD3d 484, 484-485).
The defendant contends that the County Court should have suppressed a firearm recovered during a search of his person incident to his arrest. However, the proof at the suppression hearing established that when the arresting officer arrested the defendant, he reasonably confused the defendant for his brother, who was the subject of an outstanding arrest warrant. Under these circumstances, the defendant is not entitled to suppression of the firearm recovered during the search of his person (see Hill v California, 401 US 797, 804; People v Fabian, 126 AD2d 664; People v Nimmons, 60 AD2d 129).
DILLON, J.P., HINDS-RADIX, LASALLE and CONNOLLY, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court