| People v Lozado |
| 2011 NY Slip Op 09539 [90 AD3d 582] |
| Dcmbr 27, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Salvador Lozado, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), forrespondent.
Judgment, Supreme Court, New York County (Herbert J. Adlerberg, J.H.O., at suppressionhearing; Michael J. Obus, J., at plea and sentencing), rendered February 25, 2010, convictingdefendant of criminal possession of a weapon in the second degree, and sentencing him to a termof 3� years, unanimously affirmed.
The court properly denied defendant's motion to suppress the revolver recovered from hisperson. The police actions were lawful at each stage of the encounter.
Police officers conducting a nighttime vertical patrol of a Housing Authority building sawdefendant coming up the stairs in a ninth floor stairwell. When defendant saw the police, he"paused" and "looked around," displaying "nervous" behavior. These circumstances provided anofficer with an "objective credible reason" to ask defendant where he was heading (see Peoplev Crawford, 279 AD2d 267 [2001], lv denied 96 NY2d 799 [2001]; People vGreene, 271 AD2d 235 [2000], lv denied 95 NY2d 853 [2000]).
Defendant replied that he was returning a jacket to a friend on the 15th floor. The officerrequested permission to accompany defendant, and defendant agreed. Defendant's claim that hewas subjected to a level two inquiry is not supported by the record. The request to accompanydefendant was not intimidating, and in any event it did not produce an incriminating response.Instead, it led only to an inquiry made to a third party.
When defendant and the officers arrived at the apartment, an occupant refused to open thedoor, denied that the person defendant was looking for was there, and denied knowing defendant.Nothing in this conversation confirmed that defendant was lawfully in the building. Even if theoccupant's response could be viewed as implying that the person identified by defendant did livein the apartment, this did not establish that defendant had entered the building as that absentperson's invitee. On the contrary, it tended to establish that no one had given defendantpermission to enter. Simply having a friend residing in a building barred to trespassers would notentitle a nonresident to invite himself or herself in.
The officers then asked defendant whether he lived in the building, to which he replied thathe lived on the fourth floor, but did not know the apartment number. Defendant's inability toidentify his own supposed apartment, along with all the surrounding circumstances, supported[*2]the reasonable inference that defendant was not "licensed orprivileged" to be in the building (Penal Law § 140.00 [5]), and provided probable cause toarrest defendant for criminal trespass (see People v Williams, 16 AD3d 151 [2005], lv denied 5NY3d 771 [2005]; People v Tinort, 272 AD2d 206, 207 [2000], lv denied 95NY2d 872 [2000]; People v Magwood, 260 AD2d 246 [1999], lv denied 93NY2d 1004 [1999]). Concur—Mazzarelli, J.P., Friedman, Catterson, Renwick andFreedman, JJ.