P, Q (p. 19); Exhs. F (p 8, 13), H (p. 18), K (p. 21), O (p.
Benge immediately radioed police headquarters to advise them
that he had spotted the individual fitting the description
provided by the 911 caller (male black in a striped shirt acting
as a lookout) and that he was running eastbound on Horton Avenue
in the direction of North Avenue. Officer Benge observed other
police units arrive and stop in the area where he saw plaintiff
running. Benge Aff't ¶¶ 7-8, Exhs. P, Q (p. 19); Exhs. H (pp.
18-19, 25-26), 0 (pp. 17, 26-27).
When Benge was directly in front of the store, he saw one of
the perpetrators trying to go through a broken window. He exited
his vehicle and attempted to grab the individual but was unable
to do so. Benge secured the location until other police units
arrived. Benge Afft ¶ 9, Exhs. P, Q (pp. 19-20); Exhs. H (p.
23), K (pp. 21-22), 0 (pp. 18, 22). At this point, Benge
received another radio transmission indicating that Brogdon had
been apprehended by Officer Chiera on Horton Avenue. Benge Afft
¶ 10, Exhs. P, Q (pp. 2223); Exh. H (pp. 27-28).
The Apprehension of Plaintiff
Officer Chiera received a radio call of a burglary in progress
at the Solutions grocery store on the corner of Horton and
Brook. The dispatcher described the perpetrators as two male
blacks, one breaking into the store and the other one standing
on the corner, acting as a lookout. The lookout was described as
wearing a striped shirt. Chiera Aff't ¶¶ 2-3; Exh. J (pp. 20-21),
0 (pp. 39-40). As he was proceeding to the intersection of
Horton and Brook, Chiera received another radio transmission,
this one from Benge, advising that the person described as the
"lookout" was running eastbound on Horton Avenue and that he was
dressed in a striped shirt and dark pants. Exh. J (p. 24);
Chiera Aff't ¶ 4, Exhs. R, S (pp, 3031).
When he got to the intersection of Brook and Horton, Chiera
spotted Brogdon, who was wearing a striped shirt with a
light-colored solid back, running eastbound on Horton. Chiera
Aff't ¶ 5, Exhs. R, S (p. 31); Exhs. J (p. 22), O (p. 41). After
radioing Brogdon's location to police headquarters, Chiera then
chased after Brogdon. Chiera stopped Brogdon approximately half
a block away from the grocery store. Chiera Aff't ¶ 5; Exhs. J
(p. 22), O (p. 45). Although Chiera identified himself as a
police officer, Brogdon ignored Chiera's commands to "stop".
Brogdon turned around and started to proceed westbound on
Horton. Chiera repeated his commands until Brogdon complied and
sat on the ground. Within a short period of time, other back-up
units arrived to assist. Chiera Aff't ¶ 6, Exh. R; Exhs. J (pp.
28-29), O (p. 45). When Chiera first tried to stop Brogdon,
plaintiff volunteered that he had "no knowledge of what [was]
happening at the corner of Horton and Brook." Chiera Aff't ¶ 7,
Identification and Arrest of Plaintiff
Benge received a radio transmission indicating that the
plaintiff had been apprehended by Officer Chiera on Horton
Avenue. Benge Aff't ¶ 10, Exh. P; Exh. H (p. 27). After the
grocery store had been secured, Benge walked to where Officer
Chiera had stopped plaintiff and positively identified Brogdon
as the individual whom he had seen standing on the corner of
Brook and Horton, directly opposite the grocery store, looking
in all directions. Benge Aff't ¶ 10, Exhs. P, Q (pp. 22-23);
Exh. H (pp. 27-28).
Officer Benge then placed Brogdon under arrest. Benge Aff't ¶
Prior Pertinent Proceedings
Officer Benge signed a felony complaint prepared by the Office
of the District Attorney of Westchester County charging both
plaintiff and a co-defendant, Kelvin Wilson, with burglary in
the third degree (N.Y. Penal Law § 140.20).*fn1 Benge Aff't ¶
12; E. Thereafter, he testified at a felony hearing in August
1997. Benge Aff't ¶ 13. While co-defendant Kelvin Wilson
remained in custody, the charges against plaintiff were
dismissed for insufficient evidence pending presentation to a
grand jury. Marion Decl. Exh. E (pp. 37-38).
Both Benge and Chiera testified before the grand jury. Benge.
Aff't ¶ 14. Chiera Aff't ¶ 11. The grand jury voted to indict
Brogdon and his co-defendant on charges of burglary in the third
degree and criminal mischief in the third degree,*fn2 finding
probable cause to believe that each defendant had aided and
abetted and acted in concert with the other in the burglary of
the Solutions grocery store. People v. Wilson and Brogdon,
Indictment Nos. 97-1236-01, 02. Brogdon moved in Westchester
County Court for an inspection of the grand jury minutes and for
dismissal of the indictment. In a decision dated December 1,
1997, the court (LaCava, J) found that
the evidence before the Grand Jury satisfied the
requirements of CPL Sec. 190.65, in that it is
legally sufficient to establish a prima facie case
against the defendant on the charges contained in the
indictment and that such evidence was competent and
admissible such that, if unexplained and
uncontradicted, a conviction after trial would be
warranted. The Court further finds that the
instructions given to the Grand Jury with respect to
the applicable law in this case was proper and
legally sufficient. The defendant's motion to dismiss
the indictment, therefore, is denied.
Exh. M (p. 4).
At a hearing conducted in reference to Brogdon's motion to
suppress identification testimony, he raised the issue of lack
of probable cause for his arrest. In a decision dated, May 18,
1998, the court, (Zambelli, J.), found that there was probable
cause to arrest plaintiff and that there was nothing improper
about the identification procedure employed. Specifically, the
The Court credits the testimony of the People's
witness. In the court's opinion, Brogdon's actions in
looking all around shouting something in the
direction of Wilson upon the witness' approach, his
flight after the Police Officer got closer, the
contents of the 911 call, the fact that he matched
the description reported, and the witness'
observation that the back-up unit apprehended the
same individual he saw on the corner, cumulatively
provided probable cause for
defendant's arrest as an accomplice to Wilson's
burglary of the premises (see, People v. Basch
36 N.Y.2d 154, 365 N.Y.S.2d 836, 325 N.E.2d 156). The
Officer's ensuing positive identification of Brogdon
at the point of apprehension was sufficiently
connected and contemporaneous to the arrest itself as
to constitute the ordinary and proper completion of
an integral police procedure (see, People v.
Wharton, 74 N.Y.2d 921, 923, 550 N.Y.S.2d 260,
549 N.E.2d 462).