| People v Hill |
| 2010 NY Slip Op 02968 [72 AD3d 702] |
| April 6, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Dannel Hill, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Joseph A. Barca III, Valerie A.Livingston, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Neary, J.), rendered May 9, 2007, convicting him of criminal possession of a weapon in thethird degree (three counts), criminal trespass in the first degree, criminal trespass in the thirddegree, and resisting arrest, upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing, of those branches of the defendant's omnibus motion whichwere to suppress physical evidence and statements he made to law enforcement officials.
Ordered that the judgment is affirmed.
Here, officers assigned to the Housing Unit of the City of Yonkers Police Department(hereinafter the Housing Unit) were patrolling a public housing project named Mulford Gardens.That project had been the site of several recent shooting incidents, including a homicideinvolving rival factions from Mulford Gardens and another housing project. Shortly aftermidnight on July 24, 2006, the police observed four men congregating in front of a building atMulford Gardens. Approximately 15 to 30 minutes later, the police observed four men, this timein the vestibule of the subject building. Two police officers approached the front entrance of thebuilding, while two other police officers entered from the rear of the building. The police wereaware that people sometimes exited the building from the rear door.
As the first two officers approached the front of the building, the defendant exited from thevestibule, and into the building through the main entrance door. He then proceeded down a flightof stairs leading to an area near the rear exit of the building, where he was met by the arrestingofficer. The arresting officer asked the defendant why he was in the building and if he livedthere. The defendant explained that he was visiting his girlfriend, who lived in the building.However, when the defendant knocked on the door of a nearby apartment, there was no answer.At that point, the arresting officer asked the defendant to produce identification. The defendantproduced an identification card issued by the New York State Department of Motor Vehicles.When the arresting officer observed the defendant's name, he recalled that he had previouslyseen a poster on the wall of the Housing Unit containing the defendant's name and photograph,indicating that he was "known to carry a gun." At that point, the arresting officer directed thedefendant to raise his hands. When the defendant complied, his t-shirt rose, allegedly revealingwhat appeared to be a portion of the handle of a gun in the right front pocket of his pants.[*2]
The arresting officer testified that he intended to patdown the defendant to determine whether he had a weapon, but that the defendant ran out of therear exit of the building. The arresting officer chased the defendant on foot. After a shortstruggle, the officer apprehended the defendant and recovered a loaded nine millimeter weapon.The defendant also made several inculpatory statements to the police.
After a hearing, the Supreme Court denied those branches of the defendant's omnibus motionwhich were to suppress the gun and to suppress all but one of the statements he made to thepolice.
The credibility determinations of the suppression court must be accorded weight, as it hadthe peculiar advantages of having seen and heard the witnesses (see People v Prochilo,41 NY2d 759, 761 [1977]). In this case, there is no basis to disturb the determination of theSupreme Court denying those branches of the defendant's omnibus motion which were tosuppress the gun and his statements to police.
The initial encounter between the defendant and the police was lawful in its inception. Theinformation already possessed by the arresting officer provided him with an objective, crediblereason to approach the defendant and ask him why he was in the building and whether he livedthere. After the defendant told the arresting officer that his girlfriend lived in the building, andthe defendant knocked on the door of an apartment but failed to receive a response, the arrestingofficer was justified in requesting the defendant to produce identification (see People v Moore, 6 NY3d 496,498-499 [2006]; People v McIntosh, 96 NY2d 521, 527 [2001]; People v Bora,83 NY2d 531, 534-535 [1994]; People v Hollman, 79 NY2d 181, 184-185 [1992];People v De Bour, 40 NY2d 210, 223 [1976]; People v Hendricks, 43 AD3d 361, 363 [2007]; cf. Matter of Emmanuel O., 32 AD3d948 [2006]).
Since the arresting officer recalled that he had previously seen a poster on the wall of theHousing Unit containing the defendant's name and photograph, indicating that he was known tocarry a gun, he was justified in directing the defendant to raise his hands, as he had reasonablesuspicion that the defendant had committed or was committing a felony or misdemeanor (seePeople v Roque, 99 NY2d 50, 54 [2002]; People v Hollman, 79 NY2d at 185;People v De Bour, 40 NY2d at 223). The information contained in the poster, as testifiedto by the arresting officer, was the equivalent of an anonymous tip containing sufficientpredictive information that the defendant possessed a gun (see People v Moore, 6 NY3dat 499; People v Harry, 187 AD2d 669 [1992]; cf. Florida v J.L., 529 US 266[2000]). In addition, the information in the poster contained sufficient information to trigger thecommon-law right of inquiry, which is "activated by a founded suspicion that criminal activity isafoot" (People v De Bour, 40 NY2d at 223; see People v Hollman, 79 NY2d at184-185), and which permitted the arresting officer to take "the minimally intrusive step ofdirecting [the] defendant to raise his hands" (People v Herold, 282 AD2d 1, 8 [2001]).Once the defendant's t-shirt rose, allegedly revealing a portion of what appeared to be the handleof a gun, and the defendant fled, the arresting officer had probable cause to arrest the defendant(see People v Hollman, 79 NY2d at 185; People v Jalil, 283 AD2d 371, 372[2001]).
The defendant's further contention that the evidence was legally insufficient to support theverdict of guilt with respect to the crime of criminal trespass in the third degree is unpreservedfor appellate review, as the defense counsel merely made a general motion for a trial order ofdismissal based upon the People's alleged failure to make out a prima facie case, and did notraise a specific challenge to the sufficiency of the evidence with respect to that charge(see CPL 470.05 [2]; People vHawkins, 11 NY3d 484, 491-492 [2008]). In any event, viewing the evidence in thelight most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), wefind that the evidence was legally sufficient to establish his guilt of that crime beyond areasonable doubt. The evidence established that there was a sign in the area of the entrance to thebuilding which conspicuously posted rules prohibiting trespassing (see Penal Law§ 140.10 [e]; cf. Matter of JamesC., 23 AD3d 262, 263 [2005]; People v Mackey, 16 Misc 3d 398, 399 [2007]).
The defendant's contention that the Supreme Court imposed a maximum sentence as apenalty for exercising his right to a jury trial does not require reversal. The defendant's furthercontention that his sentence was based on a charge upon which he was acquitted is without merit(see [*3]CPL 470.05 [2]; People v Matthews, 1 AD3d 530[2003]).
The People incorrectly concede that indeterminate sentences should have been imposed onthe defendant's conviction of two of the counts of criminal possession of a weapon in the thirddegree, instead of the determinate sentences imposed by the Supreme Court. The defendant wassentenced as a second violent felony offender and convicted of a class D felony and, thus, mustbe sentenced to a determinate term of imprisonment of between five and seven years on each ofthose two counts (see Penal Law § 70.04 [3] [c]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Dillon, J.P., Balkin, Dickerson and Lott, JJ., concur.