Following a Mapp/Dunaway hearing held on December 18, 2024, this Court issued a Decision and Order which, inter alia, denied defendant's request to suppress any police observations and all physical evidence seized from defendant on January 24, 2025.^[FN1] Specifically, the Court held that "(t)he record at bar demonstrates that no physical evidence was recovered in this case and defendant was not charged with possessing the hammer observed by PO Marnaraj as a weapon. Therefore, defendant's motion to suppress physical evidence pursuant to Mapp is DENIED as moot. Based upon the foregoing, defendant's Dunaway motion to suppress police observations and all evidence flowing from therein is DENIED" (see Cleveland at 2025 NY Slip Op 50070[U], *5 [emphasis added]). The docket then proceeded to trial.

On March 18, 2025, defense counsel sent an email to the Court seeking "clarification on Decision for Cleveland" and advising that notwithstanding the denial of defendant's Mapp motion, the People informed the trial judge, Hon. Anna Mikhaleva, that they intended to introduce evidence that a hammer was recovered from defendant. The following day, the assigned ADA emailed the Court to declare "(i)t is the People's position that we did not make a record indicating that we would not be introducing evidence at trial of the hammer recovered in this case. The People's record was with respect to the fact that there was no physical/tangible evidence recovered from the person of the defendant to require a Mapp hearing . . . " Thereafter, the Court issued a briefing schedule in response to defense counsel's request for clarification. Defense counsel seeks to preclude the prosecution from eliciting testimony regarding the observations of a hammer inside of defendant's vehicle. The prosecution seeks to introduce the property voucher regarding said hammer at trial.

Upon review and consideration of the submissions, court file and relevant legal authority, [*2]the Court reaffirms its prior holding and DENIES defendant's motion to suppress and DECLINES to preclude the People from introducing testimony regarding police observations of the hammer as they are flowing from an arrest that was conducted with probable cause.

As a threshold matter, although defense counsel's request is not nominally a motion to reargue, chiefly because defendant does not assert that the Court overlooked or misapprehended matters of fact or law, reconsideration of its prior holding is within the Court's discretion and authority because the criminal matter is still pending before it (see People v Ferguson, 85 Misc 3d 1277[A], 2025 NY Slip Op 50730[U], *1 [Crim Ct, Bronx County 2025] [internal citations omitted]).

Defense counsel avers that at the outset of the Mapp hearing, the assigned ADA confirmed that no physical evidence was recovered (defendant's supplemental brief at 1-2). Defendant further contends that after the trial commenced, the prosecution unexpectedly altered its course and indicated that the People would establish that a hammer was recovered from defendant's vehicle by seeking to introduce into evidence a property voucher and police observations of the hammer (defendant's supplemental brief at 2). Defense counsel maintains that whether the prosecution asserts that the hammer was recovered in an inventory search of defendant's vehicle, or by abandonment because he purportedly fled the vehicle, the People should be estopped from proffering any evidence that defendant possessed a hammer (defendant's supplemental and reply briefs, at 3 and 2, respectively). Lastly, defendant posits that the hammer is not listed as evidence in the People's Certificate of Compliance nor is the property voucher (defendant's reply brief at 3).

The People assert that they do not seek to introduce the hammer as physical evidence because the hammer was returned to defendant but, rather, they seek only to introduce police observations and the police property voucher (People's affirmation at 5). However, the assigned ADA alternatively argues that evidence of the hammer would not be subject to a Mapp hearing because it was recovered from defendant's abandoned vehicle after he fled on foot (People's affirmation at 6). Further, the prosecution notes that defendant failed to move to suppress evidence of the hammer and, thus, seeks another bite at the apple (People's affirmation at 6-7).

Initially, the issue of whether the hammer was physical evidence recovered from defendant merits some exposition. At the Mapp hearing, the assigned ADA informed the Court, unequivocally, that no physical evidence was recovered in this matter (see Tr. December 18, 2024 at 4:17-25, 5:14-16). Moreover, the prosecution made no attempt to qualify that its representation pertained only to physical property recovered from defendant's body. Accordingly, it strains credulity for the prosecution to now assert that defense counsel failed to move to suppress evidence of the hammer where the People have contradictorily postured that "we did not make a record indicating that we would not be introducing evidence at trial of the [*3]hammer recovered in this case," while claiming that "there was no physical/tangible evidence recovered from the person of the defendant" but, also, conceding that they "will not be seeking to introduce the hammer as physical evidence." Additionally, if the People were going to premise the admissibility of the hammer as evidence on the theory that it was recovered from an inventory search or from defendant's abandoned vehicle, the prosecution would necessarily be required to establish its burden of proof at a Mapp hearing rather than merely sua sponte declaring that recovered evidence was outside the purview of the court's consideration (see People v Murray, 256 AD2d 116, 117 [1st Dept 1998]).

The record demonstrates that the prosecution failed or neglected to present evidence regarding any theory of admissibility based upon an inventory search or abandoned property. At the Mapp/Dunaway hearing, the Court relied on the People's unqualified representation that no physical evidence was recovered and, thus, understood that the hammer was not considered to be contraband or a weapon. Consequently, the Mapp issue was rendered moot.

However, where this Court found that probable cause existed to arrest defendant for leaving the scene of an incident without reporting, obstructing governmental administration, unlawfully fleeing a police officer, and reckless driving, it follows that police observations, including that of the hammer, are incidental to a lawful arrest (see Cleveland at 2025 NY Slip Op 50070[U], *4-5). Accordingly, there is no basis to preclude the officer's testimony regarding said observations (see People v Rossi, 80 NY2d 952, 954 [1992]).

Defendant's Fourth Amendment rights do not extend to paperwork created by the police. The property voucher was not properly subject to the Court's Mapp review. Therefore, the prosecution may introduce said voucher- subject to the relevant foundational requirements and rules of evidence. The admissibility of said voucher into evidence remains with the sound discretion of the trial court.

Based upon the foregoing, the Court reaffirms its denial of defendant's Mapp/Dunaway motion to suppress and declines to preclude the prosecution from introducing testimony regarding observation of the hammer.

This constitutes the opinion, decision, and order of the Court.