| People v Ellison |
| 2013 NY Slip Op 04503 [107 AD3d 1580] |
| June 14, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vJordan J. Ellison, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (James J. Piampiano, J.),rendered December 7, 2011. The judgment convicted defendant, upon a jury verdict, ofburglary in the third degree and petit larceny.
It is hereby ordered that the judgment so appealed from is unanimously affirmed andthe matter is remitted to Monroe County Court for further proceedings pursuant to CPL460.50 (5).
Memorandum: Defendant appeals from a judgment convicting him following a jurytrial of burglary in the third degree (Penal Law § 140.20) and petit larceny(§ 155.25). Contrary to defendant's contention concerning the burglary count, theevidence is legally sufficient to establish that he knowingly entered Macy's DepartmentStore (Macy's) at the Marketplace Mall, after having been banned from entering the mallfor his lifetime, with the intent to commit a crime (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Contrary to defendant's further contention,County Court did not abuse its discretion in permitting the People to question him oncross-examination with respect to five prior convictions for petit larceny and one forburglary in the third degree, but refusing to permit the People to question him withrespect to several other petit larceny convictions (see generally People v Smith, 18 NY3d 588, 593 [2012];People v Hayes, 97 NY2d 203, 207 [2002]). "[A]n exercise of a trial court'sSandoval discretion should not be disturbed merely because the court did notprovide a detailed recitation of its underlying reasoning" (People v Walker, 83NY2d 455, 459 [1994]).
Defendant also contends that the People failed to meet their burden of establishingthat there was probable cause to arrest him because the arrest was based uponinformation received in a call from Macy's security personnel that did not satisfy theAguilar-Spinelli test, which requires " 'a showing that the informant is reliableand has a basis of knowledge for the information imparted' " (People v Flowers, 59 AD3d1141, 1142 [2009]). We reject that contention. The Sheriff's deputies who respondedto the radio call from security personnel at Macy's were in their office located at theMarketplace Mall when they were advised that a black male carrying a garbage bagcontaining clothing for which he had not paid had exited the store at the mall entrance.The Sheriff's deputies immediately proceeded toward the Macy's store and encountereddefendant, [*2]who matched the description provided byMacy's security personnel, as well as the security personnel who had made the call andhad followed defendant out of the store (cf. People v Parris, 83 NY2d 342, 350[1994]; People v Dodt, 61 NY2d 408, 415-416 [1984]). We therefore concludethat the court properly determined that there was probable cause to arrest defendant.Inasmuch as there was no " 'police-arranged confrontations between a defendant and aneyewitness' " (People v Dixon, 85 NY2d 218, 222 [1995]), we reject defendant'scontention that the court erred in determining that no Wade hearing was requiredwith respect to the identification of defendant by security personnel. We have revieweddefendant's remaining contention and conclude that it has no merit.Present—Scudder, P.J., Peradotto, Lindley and Sconiers, JJ.