People v. August

• Decision Date: 19 October 2006
• Docket Number: 14909.
• Citation: 33 A.D.3d 1046,822 N.Y.S.2d 334,2006 NY Slip Op 07524
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KEITH AUGUST, Appellant.
• Court: New York Supreme Court — Appellate Division

33 A.D.3d 1046

822 N.Y.S.2d 334

2006 NY Slip Op 07524

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KEITH AUGUST, Appellant.

14909.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided October 19, 2006.

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered April 10, 2003, upon a verdict convicting defendant of the crime of burglary in the second degree.

Cardona, P.J.

While doing household chores one night in June 2002, the victim heard a noise in her living room. Upon investigation, she discovered an unknown male standing near her couch. After she yelled, the intruder turned, momentarily facing her, and then fled. The victim immediately called 911 and described the intruder as a white male, "about five-seven, wearing a green shirt and jeans, smelled like alcohol, had shoulder length straggly hair ... and a beard and a mustache." John White, a police detective for the Town of Rotterdam, Schenectady County, responded to the scene and received an identical description of the intruder from the victim, which he relayed over his police radio. In the interim, a neighbor of the victim telephoned police to report that an unidentified man was walking around his home. The neighbor's description of the individual was consistent with that given by the victim. Shortly thereafter, patrolman Robert Dufek, who was positioned nearby, observed emerging from behind a house a white male with "straggly brown hair," "very unshaven," "wearing a bluish colored shirt" and blue jeans. Dufek trained his revolver on the man, later identified as defendant, and directed him to stop and drop to the ground. After Dufek was joined by other officers, defendant was handcuffed and seated against a tree. The victim was soon brought to the location and identified defendant as the intruder.

Defendant was indicted and charged with the crimes of burglary in the second degree, grand larceny in the fourth degree and petit larceny. Following a trial, defendant was found guilty of burglary in the second degree and sentenced, as a persistent violent felony offender, to a prison term of 18 years to life.

Defendant primarily contends that County Court erred in failing to suppress the victim's pretrial identification. As to his claim that the showup identification was the product of an unlawful de facto arrest (see generally Dunaway v New York, 442 US 200 [1979]), we need not examine the propriety of County Court's factual determination in that regard since we conclude that the police had probable cause to arrest defendant at the time he was confronted by Dufek (see CPL 140.10 [1] [b]; see also People v Brnja, 50 NY2d 366, 372 [1980]).

"Probable cause `does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been ... committed' by the person arrested" (People v Shulman, 6 NY3d 1, 25 [2005], cert denied 547 US ___, 126 S Ct 1623 [2006], quoting People v Bigelow, 66 NY2d 417, 423 [1985]). Accordingly, a police officer may effect a warrantless arrest when he or she observes a suspect in close geographic and temporal proximity to the crime scene and the suspect's appearance matches a sufficiently detailed description of the perpetrator received by the officer (see People v Terry, 2 AD3d 977, 979 [2003], lv denied 2 NY3d 746 [2004]; People v Oliver, 191 AD2d 815, 816 [1993]; see also People v Harmon, 293 AD2d 303, 303-304 [2002], lv denied 98 NY2d 676 [2002]; People v McKethan, 225 AD2d 800, 800 [1996], lv denied 88 NY2d 938 [1996]; People v Ward, 182 AD2d 573, 573 [1992], lv denied 81 NY2d 849 [1993]).

Here, the victim twice provided a thorough description of the alleged intruder which was corroborated by the unsolicited account of a neighbor. Also significant is the fact that, within two hours of the crime, Dufek encountered defendant—who matched the intruder's description in every significant respect (see People v Fincher [Norris] [Williams], 225 AD2d 900, 901 [1996], lv denied 88 NY2d 984, 991, 997 [1996]; see also People v Jackson, 282 AD2d 473, 473-474 [2001], lv denied 96 NY2d 863 [2001])— in the victim's suburban neighborhood. We note that all of these events transpired shortly after midnight on a weekday morning, making it highly unlikely that multiple individuals matching the intruder's description would simultaneously be present on the streets. Under these circumstances, the police had probable cause to arrest defendant.

We are also unpersuaded that the showup identification procedure was unreasonable or unduly suggestive. The evidence before County Court indicated that the showup was conducted within two hours of the crime's commission—as soon as practicable following defendant's apprehension (see People v Boyd, 272 AD2d 898, 899 [2000], lv denied 95 NY2d 850 [2000]; People v McBride, 242 AD2d 482, 482 [1997], lvs denied 91 NY2d 876 [1997], 91 NY2d 943 [1998])—and in close proximity to the victim's home, thereby satisfying the People's threshold burden of establishing the reasonableness of the police procedure (see generally People v Ortiz, 90 NY2d 533, 537 [1997]). Moreover, the fact that defendant was handcuffed when viewed by the victim does not, as a matter of law, render the showup unduly suggestive (see People v Armstrong, 11 AD3d 721, 722 [2004], lv denied 4 NY3d 760 [2005]). Nor are we troubled by White's statement to the victim that the police had "a person stopped" whom they wanted to see if she recognized, as it "merely conveyed what a witness of ordinary intelligence would have expected under the circumstances" (People v Williams, 15 AD3d 244, 246 [2005], lv denied 5 NY3d 771 [2005]).

As a corollary to his arguments regarding the showup identification, defendant contends that his conviction was founded upon legally insufficient evidence. We disagree. Inasmuch as the victim's pretrial identification of defendant was properly admitted, his identity as the intruder in the victim's home was established by the proof adduced at trial. Moreover, his intent to commit a crime within the victim's home may be inferred from his unauthorized presence therein (see People v Armstrong, supra at 723; People v Love, 307 AD2d 528, 529 [2003], lv denied 100 NY2d 643 [2003]). Taken together, these elements establish a prima facie case of burglary in the second degree (see Penal Law § 140.25; see generally People v Bleakley, 69 NY2d 490, 495 [1987]; People v Zabala, 290 AD2d 578, 578 [2002], lv denied 97 NY2d 735 [2002]).

We also disagree with defendant's claim that the People's failure to preserve a recording of the victim's 911 telephone call warrants reversal of his conviction (see CPL 240.45 [1] [a]; see generally People v Rosario, 9 NY2d 286 [1961], cert denied 368 US 866 [1961]). As an initial matter, we note that when it was revealed at trial that the 911 tape had not been preserved, defendant did not request ameliorative measures and, accordingly, he has not preserved the issue for our review (see People v Rogelio, 79 NY2d 843, 844 [1992]; People v Brockway, 277 AD2d 482, 485-486 [2000]). In any event, defendant has not established that he was prejudiced (see generally CPL 240.75). As noted above, in addition to describing the intruder to the 911 dispatcher, the victim also separately described him to White, who thereafter disseminated that description over the police radio, leading to Dufek's apprehension of defendant. Since the victim, White and Dufek were all available for cross-examination at trial, we find no basis for reversal (see People v Armstrong, supra at 723).

Defendant also claims that he was improperly sentenced as a persistent violent felony offender because the second of his predicate violent felony convictions—i.e., his 1996 attempted burglary in the second degree conviction—was invalid due to the involuntary nature of his...