People v Mabry, 37 NY3d 933 (2021)

2021 NY Slip Op 03348 [37 NY3d 933]
May 27, 2021
Court of Appeals

[*1]

The People of the State of New York, Respondent,
v
Nathaniel Mabry, Appellant.

Decided May 27, 2021

People v Mabry, 184 AD3d 867, reversed.

{**37 NY3d at 933} OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to Supreme Court for further proceedings in accordance with this memorandum.

The People failed to establish that the warrantless search of defendant’s backpack was a valid search incident to arrest (see People v Jimenez, 22 NY3d 717, 721-722 [2014]). The record does not contain evidence supporting a determination that the backpack was in defendant’s “immediate control or ‘grabbable area’ ” (People v Gokey, 60 NY2d 309, 312 [1983]; see People v Wheeler, 2 NY3d 370, 373 [2004]). There is a lack of testimony in the record indicating where the bag was in relation to defendant immediately prior to the search. Because Supreme Court denied defendant’s suppression motion without reaching the People’s alternative argument raised in opposition, we remit the matter to Supreme Court (see People v Garcia, 20 NY3d 317, 324 [2012]; People v LaFontaine, 92 NY2d 470, 476 [1998]; People v Turriago, 90 NY2d 77, 87 [1997]).

Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia and Wilson concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed and case remitted to Supreme Court, Queens County, for further proceedings in accordance with the memorandum herein.