| People v Williams |
| 2011 NY Slip Op 07872 [89 AD3d 1222] |
| November 10, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jarquell Williams,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered September 9,2009 in Albany County, upon a verdict convicting defendant of the crimes of assault in the seconddegree and resisting arrest.
During the course of an investigation into a burglary, a detective obtained a statement from aneighbor identifying defendant as one of a group of three people seen going toward the burgledapartment during the relevant time. The neighbor knew defendant by first name and selected his picturefrom a photo array. The detective notified a patrol officer that he was looking for defendant inconnection with a burglary. The officer saw defendant and stopped him on the street. Defendant talkedwith the officer and his partner for a short time, but when they attempted to handcuff defendant hepushed away from them and ran. Following a foot pursuit by several officers, one officer tackleddefendant, who struggled and elbowed the officer in the face.
Defendant was charged with burglary in the second degree, assault in the second degree andresisting arrest. Following trial, a jury acquitted him of burglary but convicted him of the other twocharges. Supreme Court sentenced defendant, as a second felony offender, to five years in prisonfollowed by five years of postrelease supervision for the assault conviction and a concurrent one yearterm for the resisting arrest conviction. Defendant appeals.[*2]
Supreme Court properly denied defendant's motion tosuppress his oral statements. Defendant asserts that he was beaten by police, was not permitted to seea lawyer or his mother despite asking for them,[FN*]and his statements were not knowingly or voluntarily made. A suppression ruling must be based uponthe evidence elicited at the suppression hearing; defendant's assertions, however, are mainly based onevidence that was not elicited until trial. Defendant presented no case at the hearing and the People'sevidence established that one of defendant's statements was made spontaneously and the others weremade after he knowingly and voluntarily waived his rights. Thus, defendant was not entitled tosuppression of his statements (see People v Marx, 305 AD2d 726, 727-728 [2003], lvdenied 100 NY2d 596 [2003]).
Probable cause existed to arrest defendant for burglary, thereby establishing that the police wereeffecting a valid arrest—a necessary element of assault in the second degree and resisting arrest(see Penal Law § 120.05 [3]; § 205.30). Probable cause does not require proof"beyond a reasonable doubt but merely information sufficient to support a reasonable belief that anoffense has been . . . committed" by the person being arrested (People v Bigelow,66 NY2d 417, 423 [1985]; see People vShulman, 6 NY3d 1, 25 [2005], cert denied 547 US 1043 [2006]). Here, thedetective obtained a statement from the property owner indicating that her back door was broken andseveral items of her personal property were missing when she returned to her apartment. No one hadpermission to be in the apartment or take the property. The downstairs neighbor spoke with thedetective and supplied a written statement indicating that he saw three individuals going up the stairs tothe burgled apartment during the relevant time period, he heard a loud bang and noises inside theapartment, then the individuals left. He identified one of the individuals by the name "Jarquell," a personwho he believed lived next door to him. The neighbor then picked defendant's picture out of a photoarray as one of the individuals that he had seen on the stairs to the burgled apartment. Based upon thisinformation, the police had probable cause to believe that the crime of burglary had been committed bydefendant (see People v Bruno, 47AD3d 1064, 1066 [2008], lv denied 10 NY3d 809 [2008]; People v Bell, 270AD2d 916 [2000], lv denied 95 NY2d 793 [2000]; People v Irving, 107 AD2d 944,945 [1985]). Thus, they were authorized to arrest him for that crime. "[I]n light of the lower thresholdof proof necessary to establish probable cause for an arrest than proof beyond a reasonable doubt,which is the People's ultimate burden at trial," it is irrelevant that a jury later acquitted defendant ofburglary (People v Lepard, 83 AD3d1214, 1216 [2011]; see People vLaltoo, 22 AD3d 230 [2005]). Defendant's guilt of assault in the second degree and resistingarrest was established by proof that he resisted a valid arrest and injured an officer who was attemptingto assist in effecting the arrest.
Defendant argues that the People violated his rights by mentioning uncharged prior bad acts. Thisissue is unpreserved because he failed to object at trial and, in one instance, his counsel—not thePeople—introduced evidence of defendant's prior criminal actions (see People v Echavarria, 53 AD3d859, 863 [2008], lv denied 11 NY3d 832 [2008]). Defendant's contentions about errorsin the presentence investigation report are unpreserved because no such errors were brought toSupreme Court's attention (see People vSwartz, 23 AD3d 917, 918 [2005], lv denied 6 NY3d 818 [2006]; People vMoquette, 200 AD2d 854 [1994], lv denied 83 NY2d 874 [1994]). Considering theinjuries that defendant inflicted upon a police officer in his violent struggle to avoid apprehension, thesentence was not harsh or excessive.[*3]
Peters, J.P., Rose, Lahtinen and Garry, JJ., concur. Orderedthat the judgment is affirmed.
Footnote *: Defendant was 22 years old at thetime of the burglary.