| People v Moss |
| 2011 NY Slip Op 08416 [89 AD3d 1526] |
| November 18, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Clarence Moss,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), renderedJanuary 7, 2010. The judgment convicted defendant, upon a jury verdict, of attempted burglary in thethird degree and possession of burglar's tools.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of attemptedburglary in the third degree (Penal Law §§ 110.00, 140.20) and possession of burglar'stools (§ 140.35), defendant contends that Supreme Court erred in refusing to suppress hisstatement to the police and the items discovered on his person. We reject that contention. The policeofficers had reasonable suspicion to stop and detain defendant "based on the totality of thecircumstances, including 'a radio transmission providing a general description of the perpetrator[ ] of[the] crime . . . [,] the . . . proximity of the defendant to the site of the crime,the brief period of time between the crime and the discovery of the defendant near the location of thecrime, and the [officer's] observation of the defendant, who matched the radio-transmitted description' "(People v Casillas, 289 AD2d 1063, 1064 [2001], lv denied 97 NY2d 752 [2002];see People v Clinkscales, 83 AD3d1109 [2011], lv denied 17 NY3d 815 [2011]; People v Ramos, 74 AD3d 991, 992 [2010], lv denied 15NY3d 808 [2010]). Even assuming, arguendo, that the 911 call to which the officers were respondingwas made by an anonymous caller, we conclude that the information provided by the caller wassufficiently corroborated to provide reasonable suspicion (see People v Jeffery, 2 AD3d 1271 [2003]). Indeed, the call was "basedon the contemporaneous observation of conduct that was not concealed," i.e., an African-Americanmale breaking into a vacant house (id. at 1272). With respect to defendant's statement to thepolice that he was stealing cable, we conclude that the record of the suppression hearing "supports thecourt's determination that defendant spontaneously made that statement [inasmuch as] it was not theproduct of express questioning or its functional equivalent" (People v Cheatom, 57 AD3d 1447, 1447 [2008], lv denied 12NY3d 782 [2009] [internal quotation marks omitted]). Thus, Miranda warnings were notrequired with respect to that statement.
We reject defendant's further contention that the CPL 710.30 notice did not provide him withadequate notice of his oral statement that the People intended to introduce at trial. [*2]According to the CPL 710.30 notice, defendant stated that he "was justgoing to steal some cable from the house." At trial, a police officer testified that defendant stated that he"went into the house to steal cable." Defendant objected to that testimony and subsequently moved fora mistrial. "[T]he People were not required to 'give a verbatim report of the complete oral statement[s]in their CPL 710.30 notice' " (People vSimpson, 35 AD3d 1182, 1182 [2006], lv denied 8 NY3d 990 [2007]).
Defendant failed to preserve for our review his contention that the evidence is legally insufficient tosupport the conviction inasmuch as he failed to renew his motion for a trial order of dismissal afterpresenting evidence (see People v Lane,7 NY3d 888, 889 [2006]; People v Hines, 97 NY2d 56, 61 [2001], reargdenied 97 NY2d 678 [2001]; People vWoodard, 83 AD3d 1440, 1441 [2011], lv denied 17 NY3d 803 [2011]). In anyevent, that contention is without merit (seePeople v Gaines, 26 AD3d 742 [2006], lv denied 6 NY3d 847 [2006]; seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude thatthe verdict is not against the weight of the evidence (see generally Bleakley, 69 NY2d at 495).Finally, "[i]n light of defendant's lengthy criminal history, the sentence is [not] unduly harsh [or] severe"(People v Spiers, 300 AD2d 1033, 1034 [2002], lv denied 99 NY2d 620 [2003]).Present—Scudder, P.J., Smith, Sconiers, Gorski and Martoche, JJ.