| People v Lewis |
| 2008 NY Slip Op 03972 [50 AD3d 595] |
| April 29, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v DavidLewis, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Grace Vee of counsel), forrespondent.
Judgment, Supreme Court, New York County (Arlene R. Silverman, J., at hearing; Daniel P.FitzGerald, J., at plea and sentence), rendered March 8, 2007, convicting defendant of criminalpossession of a forged instrument in the second degree, and sentencing him, as a second felonyoffender, to a term of 2 to 4 years, unanimously affirmed.
The court properly denied defendant's suppression motion. The officer had probable cause tobelieve that defendant had committed a violation in his presence (see CPL 140.10 [1] [a];[2] [a]). The pertinent portions of Arts and Cultural Affairs Law §§ 25.11 and 25.35make it a violation to resell or offer to resell (at any price) tickets to an entertainment venueseating over 5,000 persons, within 1,500 feet of the building. The officer observed defendantsaying to passersby "I got tickets, Billy Joel tickets," approximately 200 feet from the entrance toMadison Square Garden, where Mr. Joel was scheduled to perform. Defendant's conduct wasclearly inconsistent with that of an innocent man, and it had no rational explanation except thatdefendant was offering to sell Billy Joel tickets. In any event, probable cause does not requireproof beyond a reasonable doubt or the exclusion of every reasonable innocent explanation(see e.g. People v Mercado, 68 NY2d 874, 877 [1986], cert denied 479US 1095 [1987]). Furthermore, we reject defendant's argument that, before making an arrest, theofficer was obligated to ask defendant to explain his behavior. In view of the unequivocalconduct the officer had already observed, it is unlikely that any explanation would have negatedprobable cause.
Since the officer had probable cause, he properly arrested defendant and, pursuant to thatarrest, searched him and found counterfeit Billy Joel tickets and heroin. The officer's decision tomake an arrest was not invalidated by the fact that he had the option of issuing a summonsinstead, and a search incident to an arrest for a violation is lawful regardless of whether there isreason to suspect the presence of weapons or evidence would be found on defendant's person(People v Weintraub, 35 NY2d 351, 353-354 [1974]; People v Anderson, 111AD2d 109, 110 [1985]). These principles apply equally to arrests for violations defined instatutes other than the Penal Law (see e.g. People v Taylor, 294 AD2d 825, 826[2002] [open container ordinance]). While there is an [*2]exception for minor vehicular offenses (see People v Marsh,20 NY2d 98 [1967]), we see no reason to apply it here. A major rationale underlyingMarsh and other traffic cases is that "except in the most rare of instances, there can be no'fruits' or 'implements' of such infractions." (Id. at 101.) Here, the fact that defendant hadcounterfeit tickets on his person illustrates the potential that a person violating Arts and CulturalAffairs Law § 25.11 might be carrying evidence or instrumentalities of a crime.Concur—Tom, J.P., Mazzarelli, Andrias and Williams, JJ.