PEOPLE v. SANDERS

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Oscar SANDERS, appellant.

Decided: July 23, 2014

RANDALL T. ENG, P.J., JOHN M. LEVENTHAL, PLUMMER E. LOTT and SHERI S. ROMAN, JJ. Lynn W.L. Fahey, New York, N.Y. (Rahshanda Sibley of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and William H. Branigan of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered October 5, 2012, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, 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 defendant's contention, the Supreme Court properly denied that branch of his omnibus motion which was to suppress his clothing. Since the defendant's clothing was lying on the floor of a hospital room in a clear plastic bag, the clothing was openly visible (see People v. Grant, 94 AD3d 1139, 1140). Moreover, the police had probable cause to seize the defendant's clothing as evidence of a crime of which they believed the defendant had been a victim (see id. at 1139–1140; People v. Quinones, 247 A.D.2d 216; People v. Lewis, 243 A.D.2d 256; People v. Chandler, 18 Misc.3d 1145[A], 2008 N.Y. Slip Op 50445[U] [Sup Ct, Queens County] ).

The defendant further argues that his conviction must be vacated because the trial court conducted a Sandoval hearing (see People v. Sandoval, 34 N.Y.2d 371) in his absence. The defendant failed to rebut the presumption of regularity that attaches to official court proceedings by coming forward with substantial evidence demonstrating that the Sandoval hearing was conducted in his absence (see People v. Frank, 295 A.D.2d 535; People v. Cody, 260 A.D.2d 718; People v. Firrira, 258 A.D.2d 666; People v. Robinson, 191 A.D.2d 523). The record demonstrates that the court discussed the defendant's criminal history with the defendant, specifically stating that the defendant had a total of four prior felony convictions and nine misdemeanors, which the defendant did not dispute. The court's subsequent Sandoval ruling precluded inquiry into any underlying facts of these convictions. Therefore, even crediting the defendant's contention that he was absent from the pretrial Sandoval hearing, the court's ruling regarding the defendant's prior convictions precluded inquiry into the underlying facts of any of the convictions. Therefore, the defendant's presence at the hearing would have been superfluous, and reversal of the judgment of conviction on that basis is unwarranted (see People v. Michalek, 194 A.D.2d 568, 568–569, mod 82 N.Y.2d 906; see also People v. Dokes, 79 N.Y.2d 656, 661).

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