People v. Bero

• Decision Date: 11 April 1988
• Citation: 526 N.Y.S.2d 979,139 A.D.2d 581
• Parties: The PEOPLE, etc., Appellant, v. James BERO and Gilberto Cruz, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 979

526 N.Y.S.2d 979

139 A.D.2d 581

The PEOPLE, etc., Appellant, v. James BERO and Gilberto Cruz, Respondents.

Supreme Court, Appellate Division Second Department.

April 11, 1988.

John J. Santucci, Dist. Atty., Kew Gardens (Seymour Roth, of counsel), for appellant.

Before WEINSTEIN, J.P., and RUBIN, KOOPER and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Queens County (Pitaro, J.), dated December 10, 1985, which, after a hearing, granted those branches of the defendants' omnibus motion which were to suppress physical evidence and statements to the police.

ORDERED that the order is modified, on the law and the facts, by (1) deleting the provisions thereof which granted (a) that branch of the defendants' omnibus motion which was to suppress the television seized from under the first floor staircase in the common hallway of the apartment building where the defendant Cruz resided, (b) that branch of the motion which was to suppress as evidence against the defendant Cruz physical evidence seized from Bero's apartment and the basement of the building where Bero resided, and (c) that branch of the motion which was to suppress Bero's statement to the police, and by substituting therefor provisions denying those branches of the motion, and (2) deleting the provision thereof which granted that branch of the motion which was to suppress Cruz's statements to the police and substituting therefor a provision granting that branch of the motion only to the extent of suppressing Cruz's statement that he just carried the bags without knowledge of their contents, and otherwise denying that branch of the motion; as so modified, the order is affirmed.

On December 7, 1984, at approximately 1:15 P.M., Officer Ruggio and his partner responded to a radio transmission of a possible burglary at 45-36 40th Street, in Queens. Upon arriving at that location, Ms. Durango, a tenant with an apartment on the second floor, informed the officers that she had called 911 and reported a burglary after hearing a crashing noise coming from the third-floor apartment directly above her apartment. According to Ms. Durango, she observed the defendants Bero and Cruz, whom she knew, descending the staircase from the third floor carrying white plastic shopping bags, soon after hearing noises emanating from the third floor apartment. She next observed Bero and Cruz cross the street, still carrying the bags, and enter an apartment building in which Bero resided. Subsequently, she saw Cruz return to the third floor and come back downstairs carrying a television set. She did not see Cruz leave her apartment building. Ms. Durango provided the officers with the names and apartment numbers of both defendants. Cruz lived in the first-floor apartment in Ms. Durango's building. The officers investigated the third-floor apartment and observed that the door had been forced open and the apartment "ransacked". The officers then proceeded across the street to Bero's apartment, which was also located on the first floor. The officers knocked on the door to Bero's apartment, identified themselves in response to an inquiry by a female voice, and requested permission to enter. Immediately after this announcement, Officer Ruggio heard a "commotion" within the apartment, feet running downstairs, and then silence. Officer Ruggio kicked open the door and asked the female occupant for James Bero. The female stated that she was alone and that Bero was not at home. During this brief conversation, Officer Ruggio observed a cut hole in the floor of the apartment with a "home-made" metal staircase leading to the basement. Near the staircase was a white plastic shopping bag of property, matching the the description furnished by Ms. Durango. The officers proceeded down the staircase. They noticed two white plastic bags of property in the common basement of the apartment building near a punched-out hole in the wall. The hole led to an alleyway outside the building. While his partner seized the bags, Officer Ruggio walked out into the alley, which led to the street, and encountered the defendant Bero. He asked the defendant his name and the defendant responded "James Bero". After walking Bero to the front of his apartment building, Ms. Durango, who was looking out her window, nodded to the officer to indicate he had the right man. The defendant Bero was placed under arrest. The officers next knocked on the door of Cruz's apartment. When Cruz answered the door, he was placed under arrest. A television was recovered under the first floor stairwell in the common hallway of the building where Cruz resided.

After Bero and Cruz were placed under arrest, the defendants asked why they were being arrested. Upon being told the charge was burglary, Bero told the officers that the apartment previously had been broken into that morning. Cruz said he did not break into an apartment and agreed with Bero that the apartment had already been broken into. Officer Ruggio, without advising the defendants of the Miranda warnings, asked defendants how they came into possession of the property. Cruz replied that he just carried the bags for a friend without knowledge of their contents.

Criminal Term found there was no probable cause to arrest the defendants and there were no exigent circumstances warranting a forcible, warrantless entry into Bero's apartment. Therefore, the court suppressed the physical evidence seized from Bero's apartment, the basement of the apartment building where Bero resided and the hallway of the apartment building where Cruz resided as the tainted fruits of unlawful arrests of the defendants and an illegal entry into Bero's apartment. Additionally the defendants' statements to the police were also suppressed as evidence obtained by exploitation of arrests made without probable cause and as violative of the defendants' Miranda rights.

Although we disagree with the hearing court insofar as it found no probable cause to arrest the defendants, we agree that there were no exigent circumstances justifying the warrantless entry into the apartment of Bero.

Generally, information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest ( see, People v. Phillips, 120 A.D.2d 621, 502 N.Y.S.2d 229; People v. Tidwell, 122 A.D.2d 289, 504 N.Y.S.2d 787). "A citizen's reliability, as differentiated from that of a paid or anonymous informant, is assumed, since he [or she] could be prosecuted if his [or her] report were a fabrication" ( People v. Inman, 80 A.D.2d 622, 436 N.Y.S.2d 63). Here, the report of a named citizen (Ms. Durango), combined with the officers' observations of an apartment containing the telltale signs of a recent burglary, sufficed to provide the officers with probable cause to believe that a burglary had been committed and that the defendants Bero and Cruz were the perpetrators. The fact the evidence that Bero and Cruz were the burglars was circumstantial does not negate a finding of probable cause for their arrest ( see, e.g., People v. Sanders, 79 A.D.2d 688, 433 N.Y.S.2d 854). "[A]n arrest need not be supported by information and knowledge which, at the time, excludes all possibility of innocence and points to the defendant's guilt beyond a reasonable doubt * * * As the very name suggests, probable cause depends upon probabilities, not certainty" ( see, People v. Sanders, supra, at 690, 433 N.Y.S.2d 854; People v. Ragusa, 112 A.D.2d 956, 957, 492 N.Y.S.2d 636).

It is well established that probable cause does not, in and of itself, justify a warrantless, nonconsensual intrusion into a defendant's home ( Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639). However, where exigent circumstances exist, the officer's failure to procure an arrest warrant is excusable (Payton v. New York supra; People v. Mealer, 57 N.Y.2d 214, 455 N.Y.S.2d 562, 441 N.E.2d 1080, cert. denied 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 497). The People contend that the response to the knock at the defendant Bero's door justified their conclusion that an immediate entry was essential to prevent the escape of Bero and/or the removal of stolen property. We disagree.

Various factors used by the courts to determine whether exigent circumstances are present include (1) the gravity or violent nature of the offense with which the suspect is to be charged, (2) whether there is reason to believe the suspect is armed, (3) a clear showing of probable cause to believe that the suspect committed the crime, (4) strong reason to believe that the suspect is in the...