| People v Cepeda |
| 2018 NY Slip Op 00907 [158 AD3d 468] |
| February 8, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v David Cepeda, Appellant. |
Law Office of Randall D. Unger, Bayside (Randall D. Unger of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Luis Morales of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J. at suppression hearing;A. Kirke Bartley, Jr., J. at jury trial and sentencing), rendered November 5, 2015, as amendedDecember 9, 2015, convicting defendant of burglary in the first degree and robbery in the firstand second degrees, and sentencing him, as a second felony offender, to an aggregate term of 15years, unanimously affirmed.
The court properly denied defendant's motion to suppress physical evidence and hisstatement to police. Probable cause for defendant's arrest resulted from the totality of thecircumstances, most notably the fact that the police found defendant hiding under garbage in adumpster, in very close spatial and temporal proximity to a reported crime from which thesuspects had fled (see generally People vShulman, 6 NY3d 1, 26 [2005]). Even without a description of the suspects, the onlyreasonable inference, from all the information known to the police, was that defendant was oneof the participants (see People vSantos, 41 AD3d 324, 326 [1st Dept 2007], lv denied 9 NY3d 926 [2007]).
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). Moreover, the evidence of defendant's guilt wasoverwhelming. There is no basis for disturbing the jury's credibility determinations. In addition todefendant's spontaneous and highly incriminating statement to the police, there was extensivecircumstantial evidence, including cell phone evidence and conduct displaying consciousness ofguilt.
The trial court providently exercised its discretion in admitting into evidence a handgunrecovered near the crime scene, about 13 hours later (see e.g. People v Sosa, 255 AD2d236 [1st Dept 1998], lv denied 93 NY2d 979 [1999]). The pistol met the description of aweapon used in the crime, and it was found on a nearby rooftop under circumstances suggestingthat one of the participants may have left it there.
The court also providently exercised its discretion in precluding the defense fromcross-examining a police witness about allegations of misconduct in a civil lawsuit filed againsthim and other officers involved in an allegedly false arrest, and subsequently settled by the Cityof New York. Defendant failed to identify "specific allegations that are relevant to the credibilityof the law enforcement witness" (Peoplev Smith, 27 NY3d 652, 662 [2016]). There was no showing of this officer's role in theunderlying allegedly false arrest, other than signing a criminal complaint based on informationreceived from a fellow officer. Defendant's constitutional claim is unpreserved and we decline toreview it in the interest of justice. As an alternative holding, we also reject it on the merits(see Delaware v Van Arsdall, 475 US 673, 678-679 [1986]).
In any event, in light of the overwhelming evidence of defendant's guilt, any error in the[*2]trial court's rulings on the admission of the pistol intoevidence and the limitation of defendant's cross-examination was harmless (see People vCrimmins, 36 NY2d 230, 243 [1975]).
We perceive no basis for reducing the sentence. Concur—Renwick, J.P.,Manzanet-Daniels, Andrias, Kapnick, Moulton, JJ.