People v. Guevara-Carrero

• Decision Date: 07 February 2012
• Citation: 92 A.D.3d 693,938 N.Y.S.2d 185,2012 N.Y. Slip Op. 00979
• Parties: The PEOPLE, etc., respondent, v. Santos GUEVARA–CARRERO, appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00979
92 A.D.3d 693
938 N.Y.S.2d 185

The PEOPLE, etc., respondent,
v.
Santos GUEVARA–CARRERO, appellant.

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

Feb. 7, 2012.

[938 N.Y.S.2d 186]

Marianne Karas, Armonk, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Donald Berk of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

[92 A.D.3d 693] Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Peck, J.), rendered July 9, 2010, convicting him of manslaughter in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Robbins, J.), pursuant to a stipulation in lieu of motions, of the suppression of the defendant's statement to law enforcement officials.

ORDERED that the judgment is affirmed.

The defendant contends that his statement to law enforcement officials should have been suppressed as the fruit of an illegal arrest ( see Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441). The evidence adduced at the pretrial suppression hearing did not establish that the defendant had committed disorderly conduct, where it merely showed that, at the time of his arrest, the defendant was standing with a group of men in front of a bodega at 12:30 A.M. There was no evidence presented that any other members of the public were present at the time of the defendant's arrest after all of the members of the group except the defendant had dispersed in response to a police directive. Thus, the evidence did not establish the necessary element that the defendant's conduct evinced “the intent to or recklessly created a risk of causing ‘public inconvenience, annoyance or

[938 N.Y.S.2d 187]

alarm’ ” ( People v. Jones, 9 N.Y.3d 259, 262, 848 N.Y.S.2d 600, 878 N.E.2d 1016, quoting Penal Law § 240.20[5]; see People v. Delhall, 131 A.D.2d 870, 517 N.Y.S.2d 228). Nonetheless, despite the defendant's contentions to the contrary, his arrest was neither a sham nor pretextual, since the [92 A.D.3d 694] arresting officer had already arrested the defendant for disorderly conduct by the time he learned that the defendant may have been involved with a homicide ( see People v. Nix, 78 A.D.3d 1698, 1699, 912 N.Y.S.2d 832, cert. denied ––– U.S. ––––, 132 S.Ct. 157, 181 L.Ed.2d 72; People v. Reynolds, 240 A.D.2d 517, 518, 658 N.Y.S.2d 433; compare People v. Malloy, 22 N.Y.2d 559, 565, 293 N.Y.S.2d 542, 240 N.E.2d 37). Moreover, the complaint made by an identified passerby upon the defendant's arrest that the...