| People v Cash J.Y. |
| 2009 NY Slip Op 02434 [60 AD3d 1487] |
| March 27, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CashJ.Y., Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Patrick H. Fierro of counsel), forrespondent.
Appeal from an adjudication of the Monroe County Court (Alex R. Renzi, J.), renderedSeptember 28, 2005. Defendant was adjudicated a youthful offender upon a jury verdict thatfound him guilty of robbery in the second degree and grand larceny in the fourth degree.
It is hereby ordered that the adjudication so appealed from is unanimously affirmed.
Memorandum: Defendant was adjudicated a youthful offender following his conviction ofrobbery in the second degree (Penal Law § 160.10 [1]) and grand larceny in the fourthdegree (§ 155.30 [5]). On appeal from that adjudication, defendant contends that CountyCourt erred in refusing to suppress statements that he made to the police as well as identificationtestimony, both of which were allegedly obtained as the result of an unlawful seizure. We rejectthat contention. Contrary to the contention of defendant, the police officer who stopped thevehicle driven by defendant had the requisite reasonable suspicion to do so. The record of thesuppression hearing establishes that the police officer was responding to a series of radiodispatches stating that there had been a robbery involving three black males, one of whom wascarrying a unique jacket, and that, within minutes of the robbery and within blocks of thelocation where it occurred, the police officer observed a black male carrying the identifiedjacket. That male ran across the yards of some residences and then ran behind another residencebefore entering a waiting vehicle in which defendant was in the driver's seat. As that vehicledrove away, the police officer observed three people inside. It is well settled that the police maystop an automobile "when there exists at least a reasonable suspicion that the driver or occupantsof the vehicle have committed, are committing, or are about to commit a crime" (People vSpencer, 84 NY2d 749, 753 [1995], cert denied 516 US 905 [1995]; see People vRobinson, 97 NY2d 341, 351 [2001]). Here, there was reasonable suspicion to believe that atleast one occupant of the vehicle had committed a crime.
We further conclude that the original police officer and other responding police officers hadreasonable suspicion to stop and detain defendant for a showup identification "based on thetotality of the circumstances, including 'a radio transmission providing a general description ofthe perpetrators of [the] crime . . . [,] the . . . proximity of thedefendant to the site of the crime, the brief period of time between the crime and the discovery ofthe defendant near the location of [*2]the crime, and the[officer's] observation of the defendant [and the other perpetrators of the crime], who matchedthe radio-transmitted description' " (People v Casillas, 289 AD2d 1063, 1064 [2001],lv denied 97 NY2d 752 [2002]; see People v Owens, 39 AD3d 1260 [2007],lv denied 9 NY3d 849 [2007]; People v Evans, 34 AD3d 1301 [2006], lvdenied 8 NY3d 845 [2007]).
Defendant failed to preserve for our review his contention that the conduct of the policeofficers constituted a de facto arrest for which they lacked probable cause (see People vAndrews, 57 AD3d 1428 [2008]; see also People v Massey, 49 AD3d 462 [2008],lv denied 10 NY3d 866 [2008]), and we decline to exercise our power to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Contrary to defendant's final contention, we conclude that, although the indictment chargeddefendant with taking the victim's jacket and necklace, the court properly instructed the jury thatit could convict defendant of grand larceny in the fourth degree based on the taking of either thejacket or the necklace (see People v Charles, 61 NY2d 321, 327-328 [1984]; People vFrascone, 271 AD2d 333 [2000]). "[B]ecause the nature of the property stolen was not amaterial element of the charge which required only proof that 'property' was stolen," the courtdid not err in its instruction (Charles, 61 NY2d at 328; see Frascone, 271 AD2d333 [2000]). Present—Scudder, P.J., Smith, Centra, Fahey and Pine, JJ.