Opinion
200 Ind. No. 409/15 Case No. 2017–2022
05-18-2023
The PEOPLE of the State of New York, Respondent, v. Jimmy FRAZIER, Defendant–Appellant.
Twyla Carter, The Legal Aid Society, New York (Svetlana M. Kornfeind of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Max Bernstein of counsel), for respondent.
Twyla Carter, The Legal Aid Society, New York (Svetlana M. Kornfeind of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Max Bernstein of counsel), for respondent.
Renwick, A.P.J., Kapnick, Gesmer, Pitt–Burke, Higgitt, JJ.
Judgment, Supreme Court, New York County (Marcy L. Kahn, J. at hearing; Gregory Carro, J. at plea and sentencing), rendered February 3, 2016, convicting defendant of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to a term of 1½ to 3 years, unanimously affirmed.
The court properly denied defendant's motion for suppression on the basis that the police lawfully arrested defendant for a violation of a transit regulation. Defendant's conduct of holding open a subway door satisfied the elements of that regulation, rendering the arrest lawful regardless of the officer's subjective intent (see Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 [1996] ; People v. Robinson, 97 N.Y.2d 341, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001] ). Because we find probable cause based on defendant's violation of the transit regulation, we need not address whether the police had probable cause to arrest defendant based on his alleged connection to a series of subway station chain snatchings.
The photo array shown to the victims was not unduly suggestive because there was no substantial likelihood that defendant would be singled out for identification (see People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ). Our examination of the array reveals that the men depicted were of similar appearance, and that all appeared to be within the same age range, which was the age range specified by the victims. The fact that defendant appears to have some gray hairs does not make him appear noticeably older than the fillers.