| People v Tiribio |
| 2011 NY Slip Op 07277 [88 AD3d 534] |
| October 18, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Gabriel Tiribio, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Susan Axelrod of counsel), forrespondent.
Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered July 16, 2008,convicting defendant, after a jury trial, of burglary in the first degree (two counts), burglary in thesecond degree, and robbery in the first and second degrees, and sentencing him, as a secondfelony offender, to an aggregate term of 18 years, unanimously affirmed.
The court properly denied defendant's suppression motion. Defendant's principal argument isthat the police action was a full scale arrest requiring probable cause, rather than an investigativedetention only requiring reasonable suspicion. However, the officers' display of their weapons,use of force to bring defendant to the ground, and application of handcuffs were precautionarymeasures that were justified by the circumstances and did not elevate the detention to an arrest(see People v Allen, 73 NY2d 378, 379-380 [1989]; People v Chestnut, 51 NY2d14, 21 [1980]). The police entered a confusing, rapidly unfolding situation and were reasonablyconcerned for their safety. The hearing record fully supports the court's finding that the policehad been informed that the fleeing suspects were armed, as well as its finding that defendant andhis accomplice did not comply with the officers' initial command that they not move. To theextent that defendant is also arguing that the police did not even have reasonable suspicion, thatargument is without merit.
Defendant did not preserve his claim that the verdict was based on legally insufficientevidence, and we decline to review it in the interest of justice. As an alternative holding, wereject it on the merits. We also find that the verdict was not against the weight of the evidence(see People v Danielson, 9 NY3d342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations.Concur—Mazzarelli, J.P., Moskowitz, Acosta, Renwick and DeGrasse, JJ.