| People v Francis |
| 2007 NY Slip Op 07717 [44 AD3d 788] |
| October 9, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JudeFrancis, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (McKay, J.),rendered April 29, 2005, convicting him of rape in the first degree and robbery in the first degree,upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after ahearing, of those branches of the defendant's omnibus motion which were to suppress physicalevidence and to suppress his statements to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant was convicted of forcibly robbing and raping the complainant atapproximately 5:00 a.m. on April 12, 2003, while the complainant was walking to the subway togo to work. Within minutes of receiving a radio transmission of a crime in progress, PoliceOfficers Panzella and Lendemann responded to the area. They observed the defendant, who waspartially undressed with his pants "half down to his ankles," and the complainant, who wascrying and yelling that she was being raped. Police Officer Panzella observed the defendant's facefor a matter of seconds before he fled, and noticed that he was wearing a black jacket and boots.
Officer Panzella chased the defendant across a porch, up a fence, and onto a rooftop, wherePanzella remained after losing sight of the defendant. Two additional police officers arrived atthe scene and spoke to the complainant. Additional radio descriptions of the perpetrator were[*2]broadcast as well as requests for aviation and canine units.Officers from the Emergency Services Unit and Police Officer Saunier of the EmergencyServices Canine Unit, joined the search for the defendant. Officer Saunier knew that they werelooking for the perpetrator of a sexual assault, but he was never given a description of thedefendant.
Suspecting that the defendant was in an abutting lot to the crime scene surrounded by alocked fence, Saunier, on the scene with Officer Lendemann, called out that he had a trained dog,who was going to be released if anyone in the lot did not come out. There was no response andthe dog was released. The dog retrieved a blue Timberland work boot which, according toLendemann, matched another boot found at the crime scene. The dog was thereafter redeployedto search the same lot and found the defendant, without shoes, hiding under a pile of debris. Thedefendant was placed under arrest.
After a joint Dunaway, Mapp, and Huntley, hearing (see Dunaway v NewYork , 442 US 200 [1979]; Mapp v Ohio, 367 US 643 [1961]; People v Huntley,15 NY2d 72 [1965]), the Supreme Court denied those branches of the defendant's omnibusmotion which were to suppress the property recovered from him and the subsequent statementshe made to investigators. On appeal, the defendant challenges, inter alia, the probable cause forhis arrest. We affirm.
"Probable cause does not require proof sufficient to warrant a conviction beyond a reasonabledoubt but merely information sufficient to support a reasonable belief that an offense has been oris being committed or that evidence of a crime may be found in a certain place" and that theperson being arrested committed the crime or offense (People v Bigelow, 66 NY2d 417,423 [1985]; People v McRay, 51 NY2d 594, 602 [1980]; People v De Bour, 40NY2d 210, 223 [1976]; People v Harris, 224 AD2d 711 [1996]). That legal conclusion isto be made after considering "all of the facts and circumstances together" (People vBigelow, 66 NY2d at 423). The probable cause determination of the hearing court, whichhad the advantage of hearing and seeing the witnesses firsthand, is to be accorded great weight onappeal, and will not be disturbed unless clearly unsupported by the record (see People vProchilo, 41 NY2d 759, 761 [1977]; People v Stevens, 43 AD3d 1088 [2007]; People v Rios, 11 AD3d 641, 642[2004]; People v Cameron, 6 AD3d546 [2004]).
Under all of the facts and circumstances of this case (see People v Bigelow, 66 NY2dat 423), the police possessed probable cause to arrest the defendant (see People vRamirez-Portoreal, 88 NY2d 99, 113-114 [1996]; People v McPherson, 300 AD2d194 [2002]; People v Turner, 295 AD2d 545 [2002]), and the hearing court properlydenied those branches of the defendant's omnibus motion which were to suppress the physicalevidence obtained and statements made to police officers after his arrest (see People v Nealy, 32 AD3d 400,401 [2006]; People v Vasquez, 291 AD2d 465 [2002]).
The defendant's contention that the evidence was legally insufficient to support hisconviction of robbery in the first degree is unpreserved for appellate review (see CPL470.05 [2]; People v Belasquez, 266 AD2d 557 [1999]), and we decline to review it inthe exercise of our interest of justice jurisdiction.
The defendant's remaining contention is without merit. Rivera, J.P., Covello, Balkin andMcCarthy, JJ., concur.