PEOPLE, res, v. NOEL DIAZ, def-ap

9112. PEOPLE, res, v. NOEL DIAZ, def-ap — Steven Banks, The Legal Aid Society, New York (Andrew C. Fine of counsel), and Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (Jeremy A. Benjamin of counsel), for ap — Robert T. Johnson, District Attorney, Bronx (Richard J. Ramsay of counsel), for res — Judgment, Supreme Court, Bronx County (Darcel D. Clark, J.), rendered July 9, 2010, convicting defendant, after a jury trial, of burglary in the third degree, possession of burglar's tools (four counts), and criminal mischief in the fourth degree, and sentencing him, as a second felony offender, to an aggregate term of three to six years, unanimously reversed, on the law, the judgment vacated, the burglar's tools counts of the indictment dismissed, and the matter remanded for a new trial on the burglary and criminal mischief charges.

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9112. PEOPLE, res, v. NOEL DIAZ, def-ap — Steven Banks, The Legal Aid Society, New York (Andrew C. Fine of counsel), and Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (Jeremy A. Benjamin of counsel), for ap — Robert T. Johnson, District Attorney, Bronx (Richard J. Ramsay of counsel), for res — Judgment, Supreme Court, Bronx County (Darcel D. Clark, J.), rendered July 9, 2010, convicting defendant, after a jury trial, of burglary in the third degree, possession of burglar’s tools (four counts), and criminal mischief in the fourth degree, and sentencing him, as a second felony offender, to an aggregate term of three to six years, unanimously reversed, on the law, the judgment vacated, the burglar’s tools counts of the indictment dismissed, and the matter remanded for a new trial on the burglary and criminal mischief charges.

The search of defendant’s backpack following his arrest was unlawful because he was handcuffed at the time of the search and it was no longer in his control (see People v. De Santis, 46 NY2d 82, 89 [1978], cert denied 443 US 912 [1979]). The contents of the backpack, which included a pair of pliers and unused garbage bags, should have been suppressed because even where a container is not in the exclusive control of the police, exigency justifying its search incident to arrest is not established in the absence of “some reasonable basis for the belief that the contents of those containers might pose a danger to the arresting officers or when there is legitimate concern for the preservation of evidence which might reasonably be thought to reside within the containers” (People v. Rosado, 214 AD2d 375, 376 [1st Dept 1995], lv denied 86 NY2d 740 [1995]).

PEOPLE, res, v. NOEL DIAZ, def-ap

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