People v. Ellerbee

• Citation: 2022 NY Slip Op 02016
• Decision Date: 23 March 2022
• Docket Number: 2019-04940,Ind. 5783/18
• Parties: The People of the State of New York, respondent, v. Alvin Ellerbee, appellant.
• Court: New York Supreme Court

2022 NY Slip Op 02016

The People of the State of New York, respondent,
v.
Alvin Ellerbee, appellant.

No. 2019-04940, Ind. No. 5783/18

Supreme Court of New York, Second Department

March 23, 2022

Patricia Pazner, New York, NY (Anders Nelson of counsel; Laurenne Ferber-Kaufman, Todd Fitch, and Eddie Pruette on the brief), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Gamaliel Marrero of counsel), for respondent.

BETSY BARROS, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Michael Gary, J.), rendered April 9, 2019, convicting him of criminal possession of a controlled substance in the fourth degree, bail jumping in the first degree, and aggravated unlicensed operation of a motor vehicle in the third degree, upon a jury verdict, and sentencing him to concurrent terms of imprisonment of 5 years to be followed by a period of postrelease supervision of 2 years on the conviction of criminal possession of a controlled substance in the fourth degree, 1 to 3 years on the conviction of bail jumping in the first degree, and 30 days on the conviction of aggravated unlicensed operation of a motor vehicle in the third degree. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, (1) by vacating the conviction of aggravated unlicensed operation of a motor vehicle in the third degree and the sentence imposed on that count, and (2) by reducing the sentence imposed on the conviction of criminal possession of a controlled substance in the fourth degree from a term of imprisonment of 5 years to be followed by a period of postrelease supervision of 2 years to a term of imprisonment of 3 years to be followed by a period of postrelease supervision of 2 years; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the count of aggravated unlicensed operation of a motor vehicle in the third degree.

The Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress physical evidence recovered from him following his arrest, since the credible evidence at the suppression hearing established that the police had probable cause to arrest the defendant (see People v Hines, 172 A.D.3d 1225, 1225-1226; People v Colselby, 240 A.D.2d 227). Contrary to the defendant's contention, the testimony of the arresting officer at the suppression hearing was not incredible as a...