| People v Martinez |
| 2017 NY Slip Op 01450 [147 AD3d 642] |
| February 23, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Lesley Martinez, Appellant. The People of the State of New York,Respondent, v Jason Rivera, Appellant |
Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee ofcounsel), and Linklaters LLP, New York (John W. Eichlin of counsel), for Lesley Martinez,appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), forJason Rivera, appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jessica Olive of counsel), forrespondent.
Judgments, Supreme Court, New York County (Charles H. Solomon, J. at suppressionhearing; Daniel P. FitzGerald, J. at jury trial and sentencing), rendered October 3, 2014,convicting defendants of grand larceny in the third degree and possession of burglar's tools, andsentencing both defendants, as second felony offenders, to aggregate terms of 3
The court properly denied defendants' suppression motion. Under the fellow officer rule(see People v Ketcham, 93 NY2d 416, 419 [1999]; see also Matter of Malik L., 58 AD3d 520, 520-521 [1st Dept2009]), the police had reasonable suspicion to stop defendants in their minivan based on tworadio transmissions sent by an officer who had been assigned to monitor a pattern of allegedmotorcycle thefts in the area, possibly involving a white van. The reporting officer stated that hehad heard a loud metallic noise coming from a direction in which he then saw two men standingnext to a motorcycle in a deserted area in the middle of the night, that he then saw a white vandriving nearby a few minutes later, and that he later noticed that the two men and the motorcyclewere missing but a broken chain was lying on the ground where the motorcycle had been. Theseobservations gave rise to a reasonable inference that the two men had stolen the motorcycle andused the van to transport it, and, given the closeness of the temporal and spatial factors, justifiedthe police in stopping the white minivan they found stopped at a red light in a location consistentwith the officer's transmission (compare People v Tindal, 231 AD2d 404, 405 [1st Dept1996], lv denied 89 NY2d 930 [1996] [observation of make and color of vehicle did notprovide reasonable suspicion "24 hours after receipt of . . . general, limitedinformation provided by the complainant"]).
Although the officers who stopped defendants did not specifically testify that they heard thesecond transmission, which reported that the motorcycle was missing from its original spot, thiswas a reasonable inference from the reporting officer's testimony about sending the twotransmissions, the evidence that all of the officers were actively working together on this matter,[*2]and the reporting officer's testimony that he saw an unmarkedpolice vehicle quickly driving in the direction in which the white van had been driving shortlyafter the second report was transmitted (see People v Ramirez-Portoreal, 88 NY2d 99,113-114 [1996]).
Under the circumstances, the officers' conduct of ordering defendants out of the van atgunpoint and placing them in handcuffs was justified as a safety measure during the temporarydetention while the officers waited for the reporting officer to arrive to make an identification,and did not constitute an arrest requiring probable cause (see People v Allen, 73 NY2d378, 380 [1989]; see also People v Foster, 85 NY2d 1012, 1014 [1995]).
The search of the vehicle was justified by the automobile and plain view exceptions to thewarrant requirement (see People v Blasich, 73 NY2d 673 [1989]; see also People vBrown, 96 NY2d 80, 88-89 [2001]). Even if the police testimony was unclear about whenexactly the search occurred, the People met their burden of coming forward, and defendants, whoconducted no cross-examination at the suppression hearing, failed to meet their "ultimate burdenof proving that the evidence should not be used against" them (People v Berrios, 28NY2d 361, 367 [1971]).
The verdict against defendant Martinez was not against the weight of the evidence (see People v Danielson, 9 NY3d342, 348 [2007]). There is no basis for disturbing the jury's credibility determinations. Thecircumstantial evidence overwhelmingly supported the conclusion that defendants stole amotorcycle and abandoned it. Defendant Rivera's weight of the evidence argument is similarlymeritless, in addition to being improperly raised for the first time in a reply brief.
We find nothing prejudicial about the portion of the court's charge in which it introduced theconcept of circumstantial evidence by referring to the necessity of resort to such evidence insome cases. Rivera's other challenges to the circumstantial evidence charge, his challenge to thecourt's reasonable doubt charge, and both defendants' claims regarding the prosecutor'ssummation are unpreserved, and we reject defendants' arguments on preservation-related issues.We decline to review any of defendants' unpreserved claims in the interest of justice. As analternative holding, we find that the jury instructions at issue, each viewed as a whole, conveyedthe proper standards while containing no constitutionally defective language, and that theprosecutor's references to defendants' Bronx residences neither appealed to bias nor shifted theburden of proof. We perceive no basis for reducing the sentences.Concur—Friedman, J.P., Richter, Kapnick and Kahn, JJ.