| People v Velez |
| 2009 NY Slip Op 01149 [59 AD3d 572] |
| February 10, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JulioVelez, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu, Richard Longworth Hecht,and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Adler,J.), rendered December 9, 2004, convicting him of burglary in the second degree (two counts)and criminal possession of stolen property in the third degree, upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing, of those branches of thedefendant's omnibus motion which were to suppress physical evidence and identificationtestimony. By opinion and order of this Court dated February 6, 2007, the matter was remitted tothe County Court, Westchester County, for a de novo suppression hearing before a differentJudge, and a report thereafter, on those branches of the defendant's omnibus motion which wereto suppress physical evidence and identification testimony, and the appeal was held in abeyancein the interim (see 39 AD3d 38[2007]). The County Court has filed its report. Justices Skelos and Santucci have beensubstituted for Justices Crane and Lunn (see 22 NYCRR 670.1 [c]).
Ordered that the judgment is affirmed.
Three witnesses saw the defendant outside of two houses that were later discovered to havebeen burglarized, and one of those witnesses called 911, the police emergency telephonenumber. When police officers arrived at the scene, Sergeant Michael Kreso spoke to that witnessand another one of the witnesses.
Meanwhile, other police officers heard the 911 call and subsequent radio transmissions andstopped the defendant minutes later on McLean Avenue, a few blocks away from the burglarizedhomes. While the police detained the defendant, Sergeant Kreso brought two of the witnesses(hereinafter the witnesses) to McLean Avenue, where they positively identified him. The policesearched the defendant and found items of jewelry and cash later discovered to have been takenfrom the burglarized homes.
The defendant moved, inter alia, to suppress physical evidence taken from him at the time ofhis arrest. He argued that the police handcuffed and searched him immediately, before he waspositively identified, and therefore the arrest was without probable cause, and the subsequentsearch was unlawful. Sergeant Kreso and Detective Robert Benash testified at the suppressionhearing. They stated that, at the time the witnesses viewed the defendant, he was sitting on thecurb, was not in handcuffs, and had not yet been searched. Then, after the witnesses positivelyidentified the defendant, he was searched.
The hearing court denied those branches of the motion which were to suppress physicalevidence and identification testimony, finding that the police had reasonable suspicion to stopthe defendant because of the 911 broadcasts, and that probable cause to arrest had arisen after thepositive identification.
However, during the trial, the witnesses testified that when they arrived to view thedefendant, he was already on the ground, handcuffed, and being searched. After this testimonythe defendant moved to reopen the suppression hearing pursuant to CPL 710.40 (4). The courtdenied the motion.
On appeal, this Court determined that the trial court erred in denying the motion to reopenthe suppression hearing because the trial testimony of the witnesses, which contradicted thehearing testimony of Detective Benash and Sergeant Kreso as to whether the defendant washandcuffed and being searched when they first viewed him at the showup identification,constituted new facts which could not have been discovered with reasonable diligence before thedetermination of the motion, and which were pertinent to the suppression issue (see People v Velez, 39 AD3d 38,43-44 [2007]). Accordingly, this Court remitted the case to the County Court, WestchesterCounty, for a de novo suppression hearing before a different Judge, and a report thereafter, onthose branches of the defendant's omnibus motion which were to suppress physical evidence andidentification testimony (see People v Velez, 39 AD3d 38 [2007]), and the appeal washeld in abeyance in the interim.
In accordance with this Court's opinion and order, the County Court, Westchester County(Bellatoni, J.), conducted a de novo hearing on June 18, 2007 and June 19, 2007. At the hearing,the People called Detective Benash, Investigator Angelo Prestamo, Police Officers MichaelKostewich and Thomas Krogan of the Yonkers Police Department, and the witnesses. Thedefendant called Officer Kreso.
The de novo hearing court correctly determined that probable cause existed to arrest thedefendant prior to the showup identification and subsequent search. "Probable cause exists where. . . the police officer observes a suspect in close proximity to the scene of the crimeand to the time of its commission and the suspect's appearance matches a sufficiently detailedand particular description of the perpetrator which has been received by the officer" (Peoplev Blount, 143 AD2d 924, 925 [1988]). "Probable cause for a warrantless arrest does notrequire proof sufficient to support a conviction, but merely information which would lead areasonable person who possesses the same expertise as the officer to conclude, under thecircumstances, that a crime is being or was committed" (People v Cooper, 38 AD3d 678, 679 [2007] [internal quotationmarks omitted]; see People v Hicks, 68 NY2d [*2]234,238 [1986]; People v Marte, 295 AD2d 102 [2002]). Here, the evidence before the denovo hearing court showed that the police officers received, in quick succession, transmissionsindicating that (1) there was a suspicious person in the vicinity of 174 Tibbetts Road, along witha detailed description of that person, including that he was riding a yellow scooter, and (2) therewas an open window at 184 Tibbetts Road and the same suspect was seen fleeing from behindthat house on the yellow scooter. Accordingly, because the defendant matched the physicaldescription of the suspect and was riding a yellow scooter when he was stopped by the policebefore the witnesses' identification, the police had information that reasonably led them toconclude that a crime had been committed, and that the defendant was the perpetrator (seePeople v Cooper, 38 AD3d at 679; People v Williams, 254 AD2d 379 [1998];People v Hughes, 227 AD2d 976 [1996]; People v Rosa, 199 AD2d 433, 434[1993]; People v Blount, 143 AD2d at 925; cf. People v Sanchez, 276 AD2d723, 724 [2000]).
Further, the de novo hearing court correctly determined that although the showupidentification was unduly suggestive (see e.g. People v James, 218 AD2d 709, 710[1995]), the witnesses identified the defendant in court based on a sufficiently establishedindependent source (see People v Brown, 236 AD2d 549, 550 [1997]). Accordingly, thephysical evidence and identification testimony were properly admitted.
The defendant's contention that the evidence was legally insufficient to support a convictionfor burglary is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,492-493 [2008]), and in any event, is without merit. Viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we findthat it was legally sufficient to establish the defendant's guilt of burglary in the second degreebeyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15 (5),we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The sentence imposed for burglary in the second degree was not excessive (see People vSuitte, 90 AD2d 80, 85 [1982]).
The defendant's remaining contention is unpreserved for appellate review, and we decline toreview it in the exercise of our interest of justice jurisdiction. Spolzino, J.P., Skelos, Fisher andSantucci, JJ., concur.