People v. Lozado

• Decision Date: 27 December 2011
• Citation: 2011 N.Y. Slip Op. 09539,90 A.D.3d 582,936 N.Y.S.2d 22
• Parties: The PEOPLE of the State of New York, Respondent, v. Salvador LOZADO, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09539
90 A.D.3d 582
936 N.Y.S.2d 22

The PEOPLE of the State of New York, Respondent,
v.
Salvador LOZADO, Defendant–Appellant.

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

Dec. 27, 2011.

[936 N.Y.S.2d 22]

Steven Banks, The Legal Aid Society, New York (Denise Fabiano of counsel), and Mayer Brown LLP, New York (Natasha Goldvug of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.

MAZZARELLI, J.P., FRIEDMAN, CATTERSON, RENWICK, FREEDMAN, JJ.

[90 A.D.3d 583] Judgment, Supreme Court, New York County (Herbert J. Adlerberg, J.H.O. at suppression hearing; Michael J. Obus, J. at plea and sentencing), rendered February 25, 2010, convicting defendant of criminal possession of a weapon in the second degree, and sentencing him to a term of three and one-half years, unanimously affirmed.

The court properly denied defendant's motion to suppress the revolver recovered from his person. The police actions were lawful at each stage of the encounter.

Police officers conducting a nighttime vertical patrol of a Housing Authority building saw defendant coming up the stairs in a ninth floor stairwell. When defendant saw the police, he “paused” and “looked around,” displaying “nervous” behavior.

[936 N.Y.S.2d 23]

These circumstances provided an officer with an “objective credible reason” to ask defendant where he was heading ( see People v. Crawford, 279 A.D.2d 267, 719 N.Y.S.2d 18 [2001], lv. denied 96 N.Y.2d 799, 726 N.Y.S.2d 376, 750 N.E.2d 78 [2001]; People v. Greene, 271 A.D.2d 235, 705 N.Y.S.2d 370 [2000], lv. denied 95 N.Y.2d 853, 714 N.Y.S.2d 4, 736 N.E.2d 865 [2000] ).

Defendant replied that he was returning a jacket to a friend on the 15th floor. The officer requested permission to accompany defendant, and defendant agreed. Defendant's claim that he was subjected to a level two inquiry is not supported by the record. The request to accompany defendant was not intimidating, and in any event it did not produce an incriminating response. Instead, it led only to an inquiry made to a third party.

When defendant and the officers arrived at the apartment, an occupant refused to open the door, denied that the person defendant was looking for was there, and denied knowing defendant. Nothing in this conversation confirmed that defendant was lawfully in the building. Even if the occupant's response could be viewed as implying that the person identified by defendant did live in...