| People v Vasquez |
| 2013 NY Slip Op 08467 [112 AD3d 858] |
| December 18, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jesus Vasquez, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall,and Terrence F. Heller of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Balter, J.), rendered October 4, 2011, convicting him of burglary in the second degree,criminal trespass in the second degree, and criminal possession of stolen property in thefifth degree (two counts), upon a jury verdict, and imposing sentence. The appeal bringsup for review the denial, after a hearing (Mangano, Jr., J.), of that branch of thedefendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is modified, on the law, by vacating the conviction ofcriminal trespass in the second degree, vacating the sentence imposed thereon, anddismissing that count of the indictment; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly denied thatbranch of his omnibus motion which was to suppress physical evidence. A police officerreceived a radio report of a burglary in progress at an apartment building at 426Rockaway Parkway. Within minutes, the officer responded to that location and foundfour men, including the defendant, leaving the building. The men generally matched thedescription reported. At that point, the officer justifiably exercised her common-law rightto inquire (see People v De Bour, 40 NY2d 210 [1976]; People v Day, 8 AD3d495, 496 [2004]). When the men provided the officer with evasive and vagueanswers regarding their presence in the building, the right to inquire ripened intoreasonable suspicion, justifying their brief detention while other officers investigated thedefendant's claim that the men were visiting someone in an apartment other than the onethat had been burglarized (seePeople v Blas, 70 AD3d 846, 847 [2010]; People v Solomon, 6 AD3d 335, 336 [2004]; People vSims, 127 AD2d 712 [1987]). Once the police confirmed that there was no one homein that apartment, they possessed probable cause to arrest the defendant for criminaltrespass in the second degree (see Penal Law § 140.15; Matter ofDarnel B., 248 AD2d 464 [1998]; People v Judge, 236 AD2d 319 [1997];Matter of Troy F., 138 AD2d 707 [1988]). The search of the defendant's pockets,from which women's jewelry and latex gloves were recovered, was lawful as incident tohis arrest (see People vVasquez, 94 AD3d 915 [2012]).
The Supreme Court properly charged the jury with respect to the rule that aninference of guilt may be drawn from recent and exclusive possession of the fruits of thecrime (see People v [*2]Baskerville, 60 NY2d374, 382 [1983]; People v Galbo, 218 NY 283 [1916]).
However, as the People correctly concede, the defendant's conviction of criminaltrespass in the second degree must be vacated and that count dismissed as an inclusoryconcurrent count of burglary in the second degree (see Matter of Richard M., 89 AD3d 849 [2011]; Peoplev Rickett, 259 AD2d 636, 637 [1999], affd 94 NY2d 929 [2000]).Dickerson, J.P., Chambers, Roman and Miller, JJ., concur.