Summary
finding probable cause to arrest when, among other things, defendant told officers he was returning a jacket to a friend, but when officers visited his purported friend's apartment the "occupant refused to open the door, denied that the person defendant was looking for was there, and denied knowing defendant."
Summary of this case from Jackson v. City of White PlainsOpinion
2011-12-27
The PEOPLE of the State of New York, Respondent, v. Salvador LOZADO, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Denise Fabiano of counsel), and Mayer Brown LLP, New York (Natasha Goldvug of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Denise Fabiano of counsel), and Mayer Brown LLP, New York (Natasha Goldvug of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.
MAZZARELLI, J.P., FRIEDMAN, CATTERSON, RENWICK, FREEDMAN, JJ.
Judgment, Supreme Court, New York County (Herbert J. Adlerberg, J.H.O. at suppression hearing; Michael J. Obus, J. at plea and sentencing), rendered February 25, 2010, convicting defendant of criminal possession of a weapon in the second degree, and sentencing him to a term of three and one-half years, unanimously affirmed.
The court properly denied defendant's motion to suppress the revolver recovered from his person. The police actions were lawful at each stage of the encounter.
Police officers conducting a nighttime vertical patrol of a Housing Authority building saw defendant coming up the stairs in a ninth floor stairwell. When defendant saw the police, he “paused” and “looked around,” displaying “nervous” behavior. These circumstances provided an officer with an “objective credible reason” to ask defendant where he was heading ( see People v. Crawford, 279 A.D.2d 267, 719 N.Y.S.2d 18 [2001], lv. denied 96 N.Y.2d 799, 726 N.Y.S.2d 376, 750 N.E.2d 78 [2001]; People v. Greene, 271 A.D.2d 235, 705 N.Y.S.2d 370 [2000], lv. denied 95 N.Y.2d 853, 714 N.Y.S.2d 4, 736 N.E.2d 865 [2000] ).
Defendant replied that he was returning a jacket to a friend on the 15th floor. The officer requested permission to accompany defendant, and defendant agreed. Defendant's claim that he was subjected to a level two inquiry is not supported by the record. The request to accompany defendant was not intimidating, and in any event it did not produce an incriminating response. Instead, it led only to an inquiry made to a third party.
When defendant and the officers arrived at the apartment, an occupant refused to open the door, denied that the person defendant was looking for was there, and denied knowing defendant. Nothing in this conversation confirmed that defendant was lawfully in the building. Even if the occupant's response could be viewed as implying that the person identified by defendant did live in the apartment, this did not establish that defendant had entered the building as that absent person's invitee. On the contrary, it tended to establish that no one had given defendant permission to enter. Simply having a friend residing in a building barred to trespassers would not entitle a nonresident to invite himself or herself in.
The officers then asked defendant whether he lived in the building, to which he replied that he lived on the fourth floor, but did not know the apartment number. Defendant's inability to identify his own supposed apartment, along with all the surrounding circumstances, supported the reasonable inference that defendant was not “licensed or privileged” to be in the building (Penal Law § 140.00[5] ), and provided probable cause to arrest defendant for criminal trespass ( see People v. Williams, 16 A.D.3d 151, 790 N.Y.S.2d 458 [2005], lv. denied 5 N.Y.3d 771, 801 N.Y.S.2d 265, 834 N.E.2d 1275 [2005]; People v. Tinort, 272 A.D.2d 206, 207, 709 N.Y.S.2d 511 [2000], lv. denied 95 N.Y.2d 872, 715 N.Y.S.2d 227, 738 N.E.2d 375 [2000]; People v. Magwood, 260 A.D.2d 246, 688 N.Y.S.2d 526 [1999], lv. denied 93 N.Y.2d 1004, 695 N.Y.S.2d 750, 717 N.E.2d 1087 [1999] ).