| People v Lovejoy |
| 2012 NY Slip Op 01150 [92 AD3d 1080] |
| February 16, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AntoneLovejoy, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Brian Leeds of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Broome County (Cawley, J.),rendered August 13, 2009, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the fifth degree.
Defendant was arrested in December 2007 for conducting an alleged drug transaction 13 daysearlier in November 2007. At the time of his arrest, cocaine was discovered in his possession. Hewas then indicted for criminal possession of a controlled substance in the third degree inconnection with the November drug transaction and criminal possession of a controlledsubstance in the fifth degree in connection with the December cocaine possession. When CountyCourt denied defendant's motion to suppress the evidence against him, defendant pleaded guiltyto the December charge. He chose, however, to go to trial on the November charge, and he wasacquitted. He then sought to withdraw his plea to the December charge, but County Court deniedthe motion and imposed the agreed upon sentence.
On his appeal, defendant challenges the denial of his suppression motion, contending that thecocaine seized in December should have been suppressed because the police lacked probablecause to arrest him. We disagree. "Probable cause exists when an officer has knowledge of factsand circumstances 'sufficient to support a reasonable belief that an offense [*2]has been or is being committed' " (People v Maldonado, 86NY2d 631, 635 [1995], quoting People v Bigelow, 66 NY2d 417, 423 [1985]; see People v Parker, 84 AD3d1508, 1509 [2011]). Here, police officers were performing surveillance on defendant'sthree-story, six-unit apartment building in November 2007. Defendant lived on the second floorand shared a rear porch with another apartment on his floor. A common stairwell connected theporch to both the ground level and to the third floor porch. An investigator, through binoculars,observed defendant engage in what he believed was a hand-to-hand drug transaction on thesecond floor porch. After defendant re-entered his apartment, a police canine climbed thestairwell to the second floor porch and indicated the presence of narcotics located there. Thepolice seized the narcotics from the porch and identified defendant in his apartment, althoughthey did not arrest him. Based upon their observations and seizure of narcotics, the police had areasonable belief that defendant had committed a crime, giving them probable cause to arrest him13 days later without a warrant when they encountered him on the street (see CPL 140.10[1] [b]; People v Parker, 84 AD3d at 1509; People v Williams, 25 AD3d 927, 928-929 [2006], lvdenied 6 NY3d 840 [2006]; Peoplev Bell, 5 AD3d 858, 859 [2004]). Also, County Court properly concluded that defendantdid not have standing to challenge the search and seizure on the porch because it was a commonarea accessible to other tenants and their guests (see People v Rodriguez, 69 NY2d 159,163-164 [1987]; People v Wemette, 285 AD2d 729, 729-730 [2001], lv denied97 NY2d 689 [2001]; People v Muldrow, 273 AD2d 814, 815 [2000], lv denied95 NY2d 891 [2000]).
Finally, defendant contends that his plea of guilty was coerced because he was required toproceed on the December charge prior to the trial of the November charge. Again, we mustdisagree because the eventual acquittal on the November charge does not affect the existence ofprobable cause for the December arrest in light of the differing standards for probable cause andproof beyond a reasonable doubt (seePeople v Williams, 89 AD3d 1222, 1223-1224 [2011]; People v Lepard, 83 AD3d 1214,1216 [2011]; People v Laltoo, 22AD3d 230 [2005]). Moreover, the record reveals that County Court fully advised defendantof the consequences of his plea, defendant had the opportunity to discuss the matter with hisattorney and he expressed to the court that he understood the repercussions and was voluntarilyand unequivocally admitting to the commission of the crime. Under these circumstances, CountyCourt properly concluded that defendant's plea was knowingly and voluntarily entered (see People v Smith, 89 AD3d1328, 1328 [2011]; People vMoreno, 86 AD3d 863, 864 [2011], lv denied 17 NY3d 954 [2011]; People v Taylor, 82 AD3d 1291,1292 [2011], lv denied 16 NY3d 900 [2011]).
Mercure, A.P.J., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.