| People v Wilson |
| 2011 NY Slip Op 01680 [82 AD3d 797] |
| March 1, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Reginald Wilson, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Richard LongworthHecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Neary,J.), rendered July 6, 2007, convicting him of burglary in the second degree, grand larceny in thefourth degree, criminal possession of stolen property in the fourth degree, possession of burglar'stools, and obstructing governmental administration in the second degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing, of that branch ofthe defendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The defendant was arrested on June 30, 2005, shortly after a ground-floor apartment in theTown of Greenburgh had been burglarized. At the time of the burglary, the defendant's vehiclewas under the surveillance of the Harrison Police Department, which was monitoring hismovements with a global positioning system (hereinafter GPS) tracking device installed on hisvehicle without his knowledge, pursuant to a court order. At the site of the burglary, the policeobserved the defendant cross from one side of the apartment complex to another, empty-handed,and exit the complex a short time later carrying a black plastic bag with "yellowish" writing on it,which appeared to have something in it. The defendant drove away in his vehicle, and the policestopped him a mile and a quarter away. Although the police observed, on the front seat, a blackplastic bag bearing a "gold" logo, and knew the defendant had just left the Greenburgh apartmentcomplex, the defendant falsely asserted that he was coming from Valhalla and, inter alia, accusedthe police of stopping him because of his race. The defendant was arrested for obstructinggovernmental administration in the second degree after he tried to pull the driver's side door shutwhen the police opened it after he refused to step out of the vehicle when asked.
The hearing court properly denied that branch of the defendant's omnibus motion which wasto suppress physical evidence taken from the vehicle and his person. The defendant contends thatthe GPS device was unlawfully installed on his vehicle. The affidavits supporting theapplications for the warrants to install and use the GPS device established that the defendant hadan extensive history of burglary convictions, and was conclusively identified as being at thescene of a May 2005 double daytime burglary in a West Harrison apartment complex, carrying aplastic bag, from which he drove away in a [*2]vehicle registeredto him in Queens. The affidavits also noted that the defendant was identified as a possiblesuspect in an ongoing burglary ring in Nassau County, where he previously was convicted of aburglary. Accordingly, the affidavits were sufficient to support a reasonable belief that evidenceof illegal activity would be found if the defendant's vehicles were monitored with a GPS device(cf. People v Levy, 65 AD3d1057, 1057-1058 [2009], affd 15 NY3d 510 [2010]; People v Watts, 58 AD3d 647[2009]).
The record also supports the hearing court's determination that the police had reasonablesuspicion to stop the defendant's vehicle shortly after the burglary, having knowledge of thedefendant's numerous burglary offenses, his conclusive identification as being present at anotherWestchester County apartment complex during the time of a previous daytime burglary where hewas observed carrying a black plastic bag, and his conduct in walking from one side of theGreenburgh complex to the other, empty-handed, only to exit a short time later carrying a blackplastic bag which appeared to have something in it (cf. People v Fleming, 65 AD3d 702, 703 [2009]).
The defendant failed to preserve for appellate review his challenge to the lawfulness of thesearch of his vehicle following his arrest (see CPL 470.05 [2]). In any event, under thecircumstances surrounding the defendant's arrest, the police had probable cause to believe thatthe vehicle contained contraband, evidence of a crime, or a means of escape, based on the searchof his person, which revealed a pair of black leather gloves, although it was June, the presence ofthe black plastic bag with "yellowish" writing on the front seat of his vehicle, which thedefendant tried to conceal, his patently false statement about coming from Valhalla, and hisactions in pulling the car door shut when the police tried to open it after he refused to exit thevehicle when requested to do so (see People v Blasich, 73 NY2d 673, 678 [1989]; People v Martin, 28 AD3d 583,584 [2006]).
The trial court properly admitted testimony that the defendant's vehicle was equipped with aGPS device installed pursuant to a court order and that he was under police surveillance on theday of the crime. The challenged testimony was properly admitted to provide backgroundinformation regarding the reason the police were present at the site of the burglary (seePeople v Tosca, 98 NY2d 660, 661 [2002]; People v Givhan, 78 AD3d 730, 731 [2010]). Furthermore, anypotential prejudice was eliminated by the trial court's prompt instruction to the jury as to thelimited purpose of the testimony (see People v Tosca, 98 NY2d at 661; People vGivhan, 78 AD3d at 731).
Evidence that the defendant possessed a plastic card similar to a credit card, described by apolice witness as having been "bent or fashioned to use as a possible tool to slip a lock," was notimproperly admitted as evidence of an uncharged crime. The evidence showed that the defendantmay have used the plastic card in committing the crime with which he was charged in the presentcase (see People v Kennedy, 69AD3d 881, 882 [2010]).
Contrary to the defendant's contention, the prosecution satisfied its burden of proving beyonda reasonable doubt that he was convicted of two prior predicate violent felonies within therequisite statutory period (see CPL 400.15 [7]; 400.16 [2]; People v Owens, 272AD2d 481 [2000]; People v Shepard, 268 AD2d 540 [2000]). Notwithstanding the failureof the predicate statement to identify the place where the defendant was incarcerated for hisconviction on the first underlying felony for purposes of calculating the applicable tolling period(see CPL 400.15 [2]; Penal Law § 70.04 [1] [b] [v]), the predicate statement wasotherwise complete and satisfied its statutory purposes by "apprising the court of the priorconviction and providing defendant with reasonable notice and an opportunity to be heard"(People v Bouyea, 64 NY2d 1140, 1142 [1985]). Accordingly, the defendant wasproperly sentenced as a persistent violent felony offender.
The defendant's contentions relating to the constitutional and statutory authority for theissuance of the warrants authorizing the installation and use of the GPS device are unpreservedfor appellate review and, in any event, are without merit (see generally People v Weaver, 12 NY3d 433 [2009]; People v Mabeus, 63 AD3d 1447[2009]), as is his contention concerning the police officers' statutory authority to stop his vehicle.The defendant's remaining contentions, including those raised in his pro se supplemental brief,are without merit. Covello, J.P., Lott, Roman and Miller, JJ., concur.