| People v Jenkins |
| 2007 NY Slip Op 07504 [44 AD3d 400] |
| October 11, 2007 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v TroyJenkins, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Karen Schlossberg of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered April 19,2004, convicting defendant, after a jury trial, of two counts each of robbery in the first andsecond degrees, and sentencing him, as a second felony offender, to an aggregate term of 16years, unanimously affirmed.
This matter was previously before us on two occasions. On April 18, 2006, this Courtaffirmed defendant's robbery conviction on direct appeal, rejecting each of defendant's appellatearguments (28 AD3d 322 [2006]). However, on September 21, 2006, upon consent of the parties,we granted defendant's application for reargument, vacated our April 18, 2006 decision, held theappeal in abeyance and remanded the matter to Supreme Court for aMapp/Dunaway hearing (32 AD3d 745 [2006]). That hearing was held bySupreme Court, and defendant's motion to suppress physical evidence was denied. It is thisdetermination that is now before us.
The evidence at the suppression hearing established that in the early morning hours ofNovember 5, 2003, Police Officers Gallagher and Shannon were on patrol near 57th Street and10th Avenue in Manhattan. They were on the lookout for two black men who had beenperpetrating pattern robberies in delicatessens in the area, involving the use of a getaway car. Atapproximately 2:00 a.m., the officers saw two black men exiting a delicatessen, one of whomwas removing a ski mask. A man followed them out of the store, looked at the officers, and thenpointed at the two black men. The officers followed the two men in their police car, eventuallyobserving them attempting to enter a parked car around the corner. When they were unsuccessful,the men looked at the police car and then fled. The pursuing officers put a description of the twomen over the radio, and eventually cornered them on 59th Street, between 9th and 10th Avenues,with the help of another police unit. Defendant and codefendant Anthony Miles wereapprehended at gunpoint, and a ski mask and a wallet belonging to one of the delicatessenemployees were recovered from defendant.
The defense introduced a surveillance video of the robbery, which indicated that the secondman leaving the delicatessen after the robbery was not wearing a ski mask.
In an oral decision, the court denied the motion to suppress, finding that the police had [*2]overwhelming probable cause to believe that the two men hadcommitted a robbery. The court cited Gallagher's observation of one of the perpetrators removinga ski mask, which clearly indicated criminality, and the fact that the incident fit the pattern ofarmed robberies in the area.
On this appeal, defendant argues that the court erred in finding that his arrest was supportedby probable cause. We disagree. When the officers observed one of the two men removing a skimask while exiting a delicatessen at 2:00 a.m. in an area that had been the subject of similarpattern robberies, they possessed, at the very least, a founded suspicion of criminal activity,thereby justifying an inquiry (People v Turner, 275 AD2d 924 [2000], lv denied95 NY2d 939 [2000]). The hearing court properly credited Gallagher's testimony that heobserved one of the men removing a ski mask, notwithstanding the fact that a portion of thesurveillance video revealed the same man as bareheaded. The credibility determinations made bythe hearing court are entitled to great deference (People v Rosario, 275 AD2d 224, 225[2000], lv denied 95 NY2d 938 [2000]), and the record leaves open the possibility thatdefendant removed his mask immediately prior to being captured on video.
Once the man came out of the delicatessen, saw the police, and pointed at the two men, theofficers' suspicions were elevated to provide reasonable suspicion that the two men hadcommitted a crime (see People vDavila, 37 AD3d 305, 306 [2007], lv denied 9 NY3d 842 [2007]; People vSonds, 287 AD2d 319, 320 [2001], lv denied 97 NY2d 709 [2002]). Althoughreasonable suspicion constituted a sufficient predicate for the gunpoint seizure of defendant andhis accomplice (see People vMoore, 6 NY3d 496, 499 [2006]), the defendants' subsequent attempt to enter a vehicleparked around the corner and their ensuing flight from the police gave rise to probable cause toarrest. As the police conduct in this case was justified at its inception and reasonably related inscope to the circumstances that rendered its initiation permissible (People v De Bour, 40NY2d 210, 223 [1976]; People v Cantor, 36 NY2d 106, 111 [1975]), the motion tosuppress was properly denied.
The verdict was not against the weight of the evidence (see People v Bleakley, 69NY2d 490, 495 [1987]). There is no basis for disturbing the jury's determinations concerningcredibility (see People v Gaimari, 176 NY 84, 94 [1903]). There was an extensive chainof evidence establishing defendant's guilt.
Defendant's challenges to the People's summation are unpreserved and we decline to reviewthem in the interest of justice. Were we to review these claims, we would find that the challengedcomments were generally responsive to the defense summation, were fair comment based uponthe evidence and did not deprive defendant of a fair trial (see People v Overlee, 236AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]).
We perceive no basis for reducing the sentence. Concur—Andrias, J.P., Sullivan,Williams, Gonzalez and Catterson, JJ.