People v. Giles

• Citation: 239 A.D.2d 936,659 N.Y.S.2d 608
• Parties: PEOPLE of The State of New York, Respondent, v. Deric GILES, Appellant.
• Decision Date: 30 May 1997
• Court: New York Supreme Court — Appellate Division

Page 608

659 N.Y.S.2d 608

239 A.D.2d 936

PEOPLE of The State of New York, Respondent, v. Deric GILES, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

May 30, 1997.

Gerald T. Barth by Philip Rothschild, Syracuse, for Appellant.

William J. Fitzpatrick by James Maxwell, Syracuse, for Respondent.

Before DENMAN, P.J., and PINE, DOERR, BALIO and BOEHM, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him of first degree burglary, second degree assault and fourth degree criminal mischief, arising from an incident in which defendant and his brother broke into a residence and were confronted by the homeowner, whom defendant punched in the eye and knocked to the floor as the men made their escape. Defendant contends that police lacked probable cause for his arrest; that the People bolstered the identification testimony of the homeowner; that there is insufficient proof of "physical injury" to support the burglary conviction; that County Court improperly sentenced defendant as a persistent violent felony offender; and that the sentence is unduly harsh or severe.

The evidence at the suppression hearing establishes that the homeowner gave detailed descriptions of the men and their clothing to a 911 operator and to the officer who responded to the call. The homeowner also related that he had seen the men run toward Seventh North Street. That information was broadcast to the arresting officer, as was information obtained from an off-duty fireman that two men matching the broadcast description were running along Seventh North Street, about .6 miles from the scene of the crime. The arresting officer stopped defendant and his brother, who matched the description of the burglars, and asked them to remain on Seventh North Street until he could determine whether they had been involved in the burglary. The suspects complied. The stop occurred within 15 minutes of the crime. The homeowner was promptly escorted to the scene of the stop, where he identified the suspects. Given the detailed descriptions of the suspects and their apprehension so close in time and place to the crime, the initial stop and detention were supported by reasonable suspicion (see, People v. Hicks, 68 N.Y.2d 234, 508 N.Y.S.2d 163, 500 N.E.2d 861). Further, upon the homeowner's identification of the suspects, police had probable cause to arrest them (see, People v. Ryan, 224 A.D.2d 644, 645, 639 N.Y.S.2d 414, lv. denied 88 N.Y.2d 853, 644 N.Y.S.2d 699, 667 N.E.2d 349; People v. Watson, 215 A.D.2d 132, 625 N.Y.S.2d 910, lv. denied 86 N.Y.2d 804, 632 N.Y.S.2d 518, 656 N.E.2d 617).

Defendant has failed to preserve for our review his contention that police witnesses bolstered the identification testimony of the homeowner (see, People v. Butler, 169 A.D.2d 246, 247, 573 N.Y.S.2d 804, lv. denied 78 N.Y.2d 1010, 575 N.Y.S.2d 818, 581 N.E.2d 1064). Were we to exercise our power to reach that contention as a matter of discretion in the interest of justice, we would...