Appeal by the defendant from a judgment of the Supreme Court, Queens County (Knopf, J.), rendered June 15, 2010, convicting him of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, resisting arrest, and unlawful possession of marijuana, upon a jury verdict, and imposing sentence. The appeal brings up for review so much of an order of the same court (Grosso, J.), dated February 24, 2010, as denied, after a hearing, that branch of the defendant’s omnibus motion which was to suppress a gun recovered by the police.
Ordered that the judgment is modified, on the law, by vacating the convictions of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree and vacating the sentences imposed thereon; as so modified, the judgment is affirmed, the determination in the order denying that branch of the defendant’s omnibus motion which was to suppress a gun recovered by the police is vacated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings in accordance with People v LaFontaine (92 NY2d 470, 474-475 [1998]). '
On the night of August 12, 2008, a detective who was part of a narcotics operation observed the defendant, who was standing on a street corner and wearing a backpack, remove a plastic bag containing what appeared to be marijuana from his pocket and engage in a hand-to-hand sale of marijuana to an unknown man. The detective stopped the defendant and requested the bag of marijuana in his pocket, and the defendant removed a plastic bag containing marijuana from his pocket and handed it to the detective. When the detective attempted to effect an arrest of the defendant, asking him to remove the backpack before placing him in handcuffs, the defendant attempted to punch the detective and fled. The detective chased the defendant and
The detective again caught the defendant, who was then holding the backpack in front of him, and, as the two struggled over the backpack, it was released by both and left on the sidewalk as the defendant fled again, followed by the detective. For the final time, the detective caught the defendant in the street and, after a struggle, subdued and arrested him. The arrest was made approximately 36 feet away from where the backpack was left on the sidewalk. With the defendant secured by the detective’s partner, the detective returned to the backpack, opened it, and recovered a loaded semiautomatic handgun.
At a suppression hearing, the People argued that the warrantless search of the backpack was lawful because the defendant had abandoned it. The Supreme Court explicitly rejected that theory, but determined that the search was justified under the search incident to a lawful arrest exception to the warrant requirement, and denied that branch of the defendant’s omnibus motion which was to suppress the gun. Following a jury trial, the defendant was convicted of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, resisting arrest, and unlawful possession of marijuana.
The Supreme Court properly denied the defendant’s motion to dismiss the indictment on the ground that he was deprived of his statutory right to a speedy trial (see CPL 30.30). In felony cases, the People are required to be ready for trial within six months after the commencement of the criminal action (see CPL 30.30 [1] [a]). The defendant argued, inter alia, that the People were chargeable with a postreadiness delay of 146 days during the suppression hearing while the arresting detective was deployed on military duty in Iraq. Contrary to the defendant’s contention, the People demonstrated that they exercised due diligence in attempting to make the witness available and, thus, the period of time in question was excludable as an exceptional circumstance (see CPL 30.30 [3] [b]; People v Chardon, 83 AD3d 954, 955 [2011]; People v Williams, 293 AD2d 557, 557-558 [2002]; People v Grady, 111 AD2d 932 [1985]). The defendant’s contention that the People’s statement of readiness was illusory when made is unpreserved for appellate review (see CPL 470.05 [2]) and, in any event, without merit (see People v Sawh, 58 AD3d 760, 761 [2009]; People v Rogers, 7 AD3d 737 [2004]; People v Santana, 233 AD2d 344, 345 [1996]).
Contrary to the Supreme Court’s determination, the search of the backpack was not justified as a search incident to a lawful arrest. The backpack was not within the defendant’s immediate control or “grabbable area” at the time he was arrested (see People v Johnson, 241 AD2d 527, 527-528 [1997]; People v Ruffin, 133 AD2d 425, 427-428 [1987]; see also People v Hernandez, 40 AD3d at 779). Moreover, the People failed to present evidence establishing exigent circumstances at the time of the arrest that would justify the search. The detective did not assert that he searched the backpack out of concern for the safety of himself or the public, and the circumstances did not support a reasonable belief that the backpack contained a weapon (see People v Gokey, 60 NY2d at 313; People v Warner, 94 AD3d 916, 917 [2012]; People v Hernandez, 40 AD3d at 779; People v Green, 258 AD2d 531, 532-533 [1999]; cf. People v Smith, 59 NY2d 454, 458 [1983]). Likewise, the detective did not assert that he searched the backpack to protect against the destruction of evidence, and the facts do not support such an assertion.
As an alternative ground for upholding the suppression ruling, the People argue that the search was justified because the detective had probable cause to believe that the backpack contained evidence related to the drug sale. However, since the People did not rely on that theory at the suppression hearing, and the hearing court did not address the theory, the People may not raise it for the first time on appeal (see People v Dodt, 61 NY2d 408, 416 [1984]). The People also argue, as they did in the Supreme Court, that the search of the backpack was lawful