People v. Fontaine

• Decision Date: 07 July 1986
• Citation: 504 N.Y.S.2d 224,122 A.D.2d 71
• Parties: The PEOPLE, etc., Respondent, v. Kent FONTAINE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 224

504 N.Y.S.2d 224

122 A.D.2d 71

The PEOPLE, etc., Respondent, v. Kent FONTAINE, Appellant.

Supreme Court, Appellate Division,

Second Department.

July 7, 1986.

Philip L. Weinstein, New York City (Sarah M. Burr, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Nikki Kowalski and Melissa Harrison, of counsel), for respondent.

Before THOMPSON, J.P., and RUBIN, EIBER and SPATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Fuchs, J.), rendered January 5, 1983, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress evidence.

Judgment affirmed.

We reject the defendant's contention that his arrest was based only upon a vague and generalized description and thus did not satisfy the criteria for probable cause (cf. People v. De Bour, 40 N.Y.2d 210, 225, 386 N.Y.S.2d 375, 352 N.E.2d 562; People v. Riddick, 110 A.D.2d 787, 487 N.Y.S.2d 855). Three witnesses who saw the perpetrator at the burglarized premises gave the responding officers the same description: male hispanic or light-skinned black, tall, large build, wearing tan shorts and a red tee shirt. Within minutes of the crime itself, the same officers spotted an individual exactly fitting this description less than two blocks from the scene, and immediately placed him under arrest. The sufficiently detailed description given the officers, together with the closeness in time and proximity to the crime of their spotting of the defendant were more than adequate to give the officers reasonable cause to believe that this was the individual who had been described to them as the burglar (cf. CPL 140.10[1][b] ). The information relied upon by the police in making the arrest was received in a direct face-to-face encounter in which they were able to observe the facial expressions and emotional states of the witnesses (see, People v. De Bour, supra; People v. Crosby, 91 A.D.2d 20, 28, 457 N.Y.S.2d 831, lv. denied 59 N.Y.2d 765, 464 N.Y.S.2d 1028, 451 N.E.2d 507). The police knew how the witnesses' information was come by, and had no reason to suspect any untoward motive or lack of reliability, particularly in view of the independent corroboration of the description among the three witnesses (see, People v. Hicks, 38 N.Y.2d 90, 378 N.Y.S.2d 660, 341 N.E.2d 227; People v. Crosby, supra).

Also without merit is the defendant's contention that the People failed to prove his guilt beyond a reasonable doubt. The strong evidence of the defendant's guilt, though entirely circumstantial, was sufficient to exclude to a moral certainty every other reasonable hypothesis (see, People v. Way, 59 N.Y.2d 361, 365, 465 N.Y.S.2d 853, 452 N.E.2d 1181). The mere fact that the defense presented testimony attempting to establish that the property recovered from the defendant belonged to him and not the complainant does not entitle the defendant to an acquittal (see, People...