| People v Smith |
| 2009 NY Slip Op 04758 [63 AD3d 510] |
| June 11, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Hockeem Smith, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Sheryl Feldman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered October 16,2007, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in thesecond degree, and sentencing him to a term of 3½ years, unanimously affirmed.
The court properly denied defendant's suppression motion. The police had probable cause toarrest defendant for assault, based on information provided by an unidentified citizen-informantthat satisfied both prongs of the Aguilar/Spinelli test (Spinelli v UnitedStates, 393 US 410 [1969]; Aguilar v Texas, 378 US 108 [1964]). The basis ofknowledge test was satisfied when the informant stated that she had personally witnessed theassault. Although the police did not have an opportunity to ascertain her identity during thisfast-paced incident, the reliability of her information was supported by several factors. She gaveboth the 911 operator and the officers who arrived at the scene a detailed description of anassault on a pregnant woman pushing a baby stroller, including a detailed description ofdefendant's clothing, and the officers were able to independently corroborate this informationprovided when they saw a woman and a man fitting the informant's descriptions. Furthermore,the officers observed the informant's excited demeanor, which suggested that she had justwitnessed a disturbing event (see People v Govantes, 297 AD2d 551 [2002], lvdenied 99 NY2d 558 [2002]). Finally, the predicate for police action was heightened whendefendant did not simply exercise his "right to be let alone," but "actively fled from the police"(People v Moore, 6 NY3d 496,500-501 [2006]) and put up a violent struggle when the police stopped him.
Although between the time that the police detained defendant and the time they recovered aweapon from his person, the alleged assault victim stated that defendant, her boyfriend, did notassault her and that she had only been arguing with him, this did not negate probable cause,given the other circumstances. Instead, it merely presented the officers with a contradictoryversion of the events, which, by itself, did not vitiate probable cause (see e.g. Peoplev Roberson, 299 AD2d 300 [2002], lv denied 99 NY2d 619 [2003]). In any event,regardless of whether defendant was still lawfully under arrest for assault at the time of theseizure, he was lawfully under arrest for resisting arrest because he had resisted an arrest [*2]that had clearly been lawful at the time of the resistance.
Defendant's remaining suppression argument is unpreserved and we decline to review it inthe interest of justice. As an alternative holding, we also reject it on the merits.Concur—Tom, J.P., Nardelli, Catterson, Renwick and Richter, JJ.