People v. Delvillartron

• Decision Date: 24 September 2014
• Citation: 992 N.Y.S.2d 363,2014 N.Y. Slip Op. 06327,120 A.D.3d 1429
• Parties: The PEOPLE, etc., respondent, v. Angel DELVILLARTRON, appellant.
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 1429
992 N.Y.S.2d 363
2014 N.Y. Slip Op. 06327

The PEOPLE, etc., respondent,
v.
Angel DELVILLARTRON, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 24, 2014.

[992 N.Y.S.2d 364]

Lynn W.L. Fahey, New York, N.Y. (Casey Rose Scott and Leila Hull of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Danielle S. Fenn of counsel), for respondent.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, HECTOR D. LaSALLE, and BETSY BARROS, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Zayas, J.), rendered June 18, 2012, convicting him of burglary in the second degree and criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review an order of the same court (Kohm, J.), dated March 15, 2011, which, upon reargument, adhered to a prior determination in an order of the dated January 7, 2011, denying, after a hearing (Cooperman, J.H.O.), that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, upon reargument, that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials is granted, the count of the indictment charging the defendant with criminal possession of stolen property in the third degree is dismissed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings on the count of the indictment charging the defendant with burglary in the second degree.

We agree with the defendant that the evidence was legally insufficient to prove his guilt of criminal possession of stolen property in the third degree ( see People v. Spencer, 257 A.D.2d 638, 638, 684 N.Y.S.2d 561; cf. People v. Fecunda, 150 A.D.2d 600, 601, 541 N.Y.S.2d 468). There was no evidence supporting a conclusion that the defendant ever possessed the stolen property himself or acted in concert with the codefendants Kenneth Myers and Kevin Santos in their possession of the stolen property. Although the defendant's claim as to this count is unpreserved for appellate review, we reach it in the exercise of our interest of justice jurisdiction ( seeCPL 470.15[3][c]; People v. Curry, 101 A.D.3d 743, 744, 959 N.Y.S.2d 495).

The defendant's contention that the evidence was legally insufficient to prove his guilt of burglary in the second degree is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946; People v. Pitre, 108 A.D.3d 643, 643, 968 N.Y.S.2d 585; People v. Cabrera, 85 A.D.3d 942, 942, 925 N.Y.S.2d 166). In any event, viewing the evidence in the light most favorable to the prosecution

[992 N.Y.S.2d 365]

( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of that crime ( see People v. Bacote, 107 A.D.3d 641, 641, 967 N.Y.S.2d 727; People v. Horsey, 304 A.D.2d 852, 853–854, 758 N.Y.S.2d 695; People v. Anaya, 206 A.D.2d 380, 381, 614 N.Y.S.2d 59; People v. Poppel, 143 A.D.2d 854, 533 N.Y.S.2d 132; cf. People v. Taylor, 141 A.D.2d 581, 581–582, 529 N.Y.S.2d 191). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v. Delamota, 18 N.Y.3d 107, 116–117, 936 N.Y.S.2d 614, 960 N.E.2d 383; People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902; People v. Medina, 37 A.D.3d 240, 241, 830 N.Y.S.2d 76).

Despite the sufficiency of the evidence regarding the conviction of burglary in the second degree, reversal of the defendant's conviction on that count is required, because, upon reargument, the court should have granted that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials. The hearing testimony established that at approximately 8:00 a.m. on June 10, 2009, the police received a radio transmission regarding a robbery in progress, perpetrated by two black males, at a Queens residence. The police activated their sirens and lights and went to the specified house, arriving within two minutes of receiving the transmission. When the police arrived, two of the complainants, still gagged and partially bound, were on the porch of the house. The complainants used gestures to direct the officers' attention to two men, Myers and Santos, who were walking on the sidewalk, about four houses away. Myers and Santos, who were the only civilians on the block, started running, and the officers chased them. During the chase, Santos discarded an object, which the police later recovered and found to be a gun. When Myers and Santos turned a corner several blocks from the complainants' house, the officers lost sight of them briefly. When one of the officers turned the corner, he did not see any people, but saw the rear passenger door on a sport utility vehicle being closed. The vehicle was legally parked and the engine was off. The officer ran to the vehicle and peered inside through the tinted windows. After spotting Myers and Santos in the rear passenger seat, the officer “punched” the driver's side window to alert the driver not to drive away. The officer pulled the driver's door open and saw the defendant in the driver's seat, “fumbling” with the keys and trying to put them in the ignition. The officer pulled the defendant out of the car, placed him face-down on the ground, and handcuffed him. Eventually, the defendant was placed in a police car. At some point, one of the complainants, who had arrived at the scene of the arrest, happened to look into the police car and recognized the defendant as an acquaintance of his girlfriend. The defendant was later taken to the precinct, where, after being advised of his rights, he made inculpatory statements.

The judicial hearing officer (hereinafter the J.H.O.) recommended denial of the defendant's motion to suppress his statements under Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824. The J.H.O. concluded that, under the circumstances, the police had reasonable suspicion to forcibly detain the defendant and conduct a brief...