New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
May 21, 2012
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, --
TWAYNE DAVIS, APPELLANT.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Gilbert C. Hong, J.), rendered August 26, 2009.
People v Davis (Twayne)
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on May 21, 2012
PRESENT: PESCE, P.J., WESTON and ALIOTTA, JJ
The judgment convicted defendant, after a non-jury trial, of attempted criminal possession of stolen property in the fifth degree and harassment in the second degree. The appeal from the judgment brings up for review the denial of defendant's motion to suppress physical evidence and a statement he made to law enforcement officials.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged, in a single misdemeanor complaint, with the class B misdemeanors of attempted criminal mischief in the fourth degree (Penal Law §§ 110.00, 145.00 ), attempted petit larceny (Penal Law §§ 110.00, 155.25), attempted criminal possession of stolen property in the fifth degree (Penal Law §§ 110.00, 165.40), attempted assault in the third degree (Penal Law §§ 110.00, 120.00 ), and menacing in the third degree (Penal Law § 120.15), as well as a violation, harassment in the second degree (Penal Law § 240.26 ).
At a combined Dunaway, Mapp and Huntley hearing (see Dunaway v New York, 442 US 200 ; Mapp v Ohio, 367 US 643 ; People v Huntley, 15 NY2d 72 ), the arresting officer testified that he and his partner had been on patrol in an unmarked police vehicle, in plain clothes, when a police radio dispatcher had announced that a man had been shot at the corner of Agate Court and Atlantic Avenue. The radio dispatcher had described the suspect as a "black male, tall, wearing a white T-shirt with blue jeans, and short hair." The arresting officer arrived at the scene one or two minutes after the radio dispatch, where he observed a male, who matched the radio dispatcher's description and was later identified as defendant, standing next to the driver's side of a green Buick automobile. When the arresting officer approached defendant, he noticed a GPS system in defendant's hand. He asked about the GPS, and defendant explained that he had "found it."
One or two minutes later, the complainant arrived at the scene in a police car, pointed to defendant and stated, "that's him, that's the guy." The arresting officer testified that the complainant seemed nervous, agitated and excited. The officer observed that the complainant's hand had been bandaged with paper towels in an apparent attempt to stop it from bleeding. Upon the complainant's identification, the arresting officer placed defendant under arrest for the assault and robbery of the complainant. While being placed under arrest, defendant spontaneously stated, "I did take the things, but I never shot him." Subsequently, physical evidence was recovered from defendant.
At the conclusion of the suppression hearing, the Criminal Court found that the police had probable cause for the arrest of defendant, and denied suppression of the physical evidence and defendant's statement. Following a non-jury trial, defendant was convicted of attempted criminal possession of stolen property in the fifth degree and harassment in the second degree. On appeal, defendant challenges the probable cause for his arrest and argues that the denial of his motion was improper. We affirm.
An officer may arrest a person when the officer has probable cause to believe that the person has committed a crime (see Dunaway v New York, 442 US 200). That legal conclusion is to be made after considering "all of the facts and circumstances together" (People v Bigelow, 66 NY2d 417, 423 ). The probable cause determination of a hearing court, which had the advantage of hearing and seeing the witnesses firsthand, is to be accorded great weight on appeal, and will not be disturbed unless clearly erroneous (see People v Prochilo, 41 NY2d 759 ; People v Britton, 49 AD3d 893, 894 ; People v Francis, 44 AD3d 788 ; People v Stevens, 43 AD3d 1088, 1089 ). Under all the facts and circumstances of this case (see People v Bigelow, 66 NY2d at 423), we find that the arresting officer had probable cause to believe that defendant had committed a crime, and thus, to arrest defendant (see People v De Bour, 40 NY2d 210 ; People v McCrary, 71 AD3d 1049 ; People v Stevens, 43 AD3d 1088). The hearing court also properly denied defendant's application to suppress the physical evidence obtained and the spontaneous statement made to the officer while defendant was being arrested (see People v Gokey, 60 NY2d 309 ; People v Dunn, 195 AD2d 240 ).
Accordingly, the judgment of conviction is affirmed.
Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: May 21, 2012
© 1992-2012 VersusLaw Inc.