This case is not published in a printed volume and its disposition appears in a table in the reporter.
ADA Christine O'Connor Westchester County District Attorney's Office
Paul W. Pickelle, Esq.
Rory J. Bellantoni, J.
On December 9, 2004, the Defendant, Julio Velez, was convicted of two counts of Burglary in the Second Degree and Criminal Possession of Stolen Property in the Third Degree after a jury trial. Defendant appealed the trial court's denial of those branches of Defendant's Omnibus Motion which were to suppress physical evidence and identification evidence.
By opinion and order of the Appellate Division, Second Department, dated February 6, 2007, Defendant's appeal was held in abeyance and the matter was remitted to this Court for a de novo suppression hearing with respect to those branches of Defendant's Omnibus motion to suppress physical evidence and identification testimony; this Court was directed to file a report at the conclusion of said hearing.
The issue presented on appeal that warranted the Appellate Division's remittal for a hearing de novo stems from apparent contradictory testimony presented at trial which raised the issue of when the police officers obtained probable cause to arrest Defendant and the issue of witness' credibility as framed by the hearing court. On June 18 and 19, 2007, this Court conducted a suppression hearing, de novo, to determine the admissibility of the physical evidence obtained from Defendant and the identification procedure conducted by police. It is worth noting that the findings made herein are limited to the record made at the aforementioned hearing, consistent with the Appellate Division's directive to have the matter remitted before a new judge. Thus, even though defense counsel submitted the transcript of the prior proceedings, this Court did not review any of the portions of that transcript, but only those portions used or introduced into evidence at the hearing de novo.
At the hearing, five (5) police officers and two (2) civilian witnesses testified. This Court finds that all witnesses testified credibly at the de novo hearing.
On November 21, 2003, at approximately 9:45 a.m., a civilian resident living at 174 Tibbetts Road, Mr. James Nolan, heard his doorbell ring. When he answered the door, he observed a male Hispanic, approximately five (5) feet nine (9) inches tall, wearing a blue jacket and yellow hood, who asked him if he had a room available. When Mr. Nolan stated he did not, the Hispanic male apologized and walked away. Mr. Nolan observed the Hispanic male cross the street towards 175 Tibbetts Road and saw him ring that doorbell; no one answered the door and the Hispanic male crossed the street again and walked toward 178 Tibbetts Road. When the Hispanic male arrived at 178 Tibbetts Road, he rang that doorbell as well, and Mr. Michael McGee opened the door. Mr. McGee testified that there was a male Hispanic at his door inquiring if he had a room available. When Mr. McGee responded that he did not have a room available, the male Hispanic thanked him and walked away. Mr. Nolan, Mr. McGee's next door neighbor, observed the exchange and continued to observe the male Hispanic continue walking northbound towards another house. When Mr. Nolan was unable to see the male Hispanic from his home, he went outside to his front porch and observed a yellow moped at the side of a hedge within his property of 174 Tibbetts Road. Within minutes, Mr. Nolan observed the Hispanic male come back to his property, pick up the yellow moped and walk northbound. Mr. Nolan lost sight of the male Hispanic and got in his pick up truck, which was parked across the street, to see if he could locate and observe the male Hispanic. When Mr. Nolan crossed the street he discovered that the yellow moped he had previously seen in his property was behind a bush at186 Tibbetts Road. Mr. Nolan was in his truck approximately seven (7) to eight (8) minutes, when he saw the male Hispanic run down the side of 184 Tibbetts Road. Mr. Nolan called 911; as he was reporting the incident, he observed the male Hispanic pick up the yellow moped and drive toward McLean Avenue. Mr. McGee also testified that he observed the male Hispanic drive the yellow moped toward McLean Avenue.
At approximately 10:13 to 10:16 a.m., several Yonkers police officers heard a radio transmission reporting a suspicious person in the vicinity of Tibbetts Road; the description transmitted was that of a male Hispanic, wearing a blue jacket, yellow collar and driving a yellow scooter. It was further transmitted that he was observed ringing doorbells in that vicinity. Several units responded to this radio transmission as the police investigation was swiftly developing; officers transmitted, through the radio, that the description of this suspect fit the description of a repetitive burglar who had been burglarizing the area for the past several weeks and that the burglary suspect also drove a yellow scooter. Sergeant Kreso, one of the responding officers, drove to 174 Tibbetts Road where he encountered Mr. Nolan and Mr. McGee. At the scene, both Nolan and McGee described the individual to Sgt. Kreso. Another officer who also responded to Mr. Nolan's 911 call, searched 184 Tibbetts Road and that officer discovered that there was an open window at that location; the description of the suspect was again transmitted over the radio as well as the fact that an open window was observed by police officers at 184 Tibbetts Road.
Detective Benash was on duty the morning of November 21, 2003 and had been listening to the various radio transmissions describing a suspected repetitive burglar driving a yellow moped in the vicinity. Detective Benash was on an observation spot on the west side of the McLean Avenue bridge  when he observed a male on a yellow scooter, with no license plates, wearing a blue jacket, yellow collar, driving on the wrong side of the McLean Avenue bridge. As the suspect drove by on the yellow scooter, Det. Benash exited his unmarked police vehicle and grabbed a hold of the yellow scooter's handlebars; other officers arrived at the scene simultaneously and assisted Detective Benash. When the suspect came to a stop, Det. Benash informed the individual that he was investigating an incident and directed the suspect to sit by the street curb. One of the officers at the scene transmitted over the radio that an individual fitting the description of the burglary suspect had been detained in the area of McLean Avenue.
Almost immediately after hearing over the radio that a suspect had been detained, Sgt. Kreso asked Mr. McGee and Mr. Nolan if they would accompany him to the McLean Avenue bridge area for possible identification of the suspect. Sgt. Kreso drove Mr. McGee and Mr. Nolan to McLean Avenue where police had apprehended the suspect; Mr. McGee was seated in the front passenger side of the vehicle and Mr. Nolan was seated in the back seat. A brief struggle ensued between the suspect and police as Sgt. Kreso and the witnesses drove by the suspect, the suspect was taken to the ground, placed on his stomach, and surrounded by police. Mr. McGee identified the suspect as the male Hispanic he had seen ringing doorbells in his neighborhood. Mr. Nolan also identified the suspect. Sgt. Kreso nodded to Det. Benash confirming that the witnesses had positively identified the Defendant; the positive identification was transmitted over the radio. Sgt. Kreso parked his police car at a gas station, which was located across the street from where the suspect had been detained, and Mr. McGee exited the vehicle and again confirmed that the suspect was the man he saw ringing doorbells in his neighborhood; McGee's second identification was ...