Lynn W. L. Fahey, New York, N.Y. (David G. Lowry of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Terrence F. Heller of counsel), for respondent.
THOMAS A. DICKERSON, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, ROBERT J. MILLER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Balter, J.), rendered October 4, 2011, convicting him of burglary in the second degree, criminal trespass in the second degree, and criminal possession of stolen property in the fifth degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Mangano, Jr., J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is modified, on the law, by vacating the conviction of criminal trespass in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly denied that branch of his omnibus motion which was to suppress physical evidence. A police officer received a radio report of a burglary in progress at an apartment building at 426 Rockaway Parkway. Within minutes, the officer responded to that location and found four men, including the defendant, leaving the building. The men generally matched the description reported. At that point, the officer justifiably exercised her common-law right to inquire (see People v De Bour, 40 N.Y.2d 210; People v Day, 8 A.D.3d 495, 496). When the men provided the officer with evasive and vague answers regarding their presence in the building, the right to inquire ripened into reasonable suspicion, justifying their brief detention while other officers investigated the defendant's claim that the men were visiting someone in an apartment other than the one that had been burglarized (see People v Blas, 70 A.D.3d 846, 847; People v Solomon, 6 A.D.3d 335, 336; People v Sims, 127 A.D.2d 712). Once the police confirmed that there was no one home in that apartment, they possessed probable cause to arrest the defendant for criminal trespass in the second degree (see Penal Law § 140.15; Matter of Darnel B., 248 A.D.2d 464; People v Judge, 236 A.D.2d 319; Matter of Troy F., 138 A.D.2d 707). The search of the defendant's pockets, from which women's jewelry and latex gloves were recovered, was lawful as incident to his arrest (see People v Vasquez, 94 A.D.3d 915).
The Supreme Court properly charged the jury with respect to the rule that an inference of guilt may be drawn from recent and exclusive possession of the fruits of the crime (see People v Baskerville, 60 N.Y.2d 374, 382; People v Galbo, 218 NY 283).
However, as the People correctly concede, the defendant's conviction of criminal trespass in the second degree must be vacated and that count dismissed as an inclusory concurrent count of burglary in the second degree (see Matter of Richard M., 89 ...