People v. Nabi

• Decision Date: 31 October 2018
• Docket Number: Ind. No. 1149/13,2015–02956
• Citation: 87 N.Y.S.3d 76,165 A.D.3d 1292
• Parties: The PEOPLE, etc., Respondent, v. Vishwa NABI, Appellant.
• Court: New York Supreme Court — Appellate Division

165 A.D.3d 1292

87 N.Y.S.3d 76

The PEOPLE, etc., Respondent,

v.Vishwa NABI, Appellant.

2015–02956

Ind. No. 1149/13

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

Argued—June 5, 2018

October 31, 2018

Paul Skip Laisure, New York, N.Y. (Lauren E. Jones of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Merri Turk Lasky, and Mariana Zelig of counsel), for respondent.

MARK C. DILLON, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Leslie Leach, J.), rendered April 2, 2015, convicting him of burglary in the second degree, conspiracy in the fourth degree, possession of burglar's tools, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Steven Paynter, J.), after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

The defendant was convicted of burglary in the second degree, conspiracy in the fourth degree, possession of burglar's tools, and criminal possession of stolen property in the fifth degree following a jury trial in the Supreme Court, Queens County. At trial, the prosecution presented evidence that the police had been monitoring a particular BMW vehicle via a global positioning system device (hereinafter GPS device), which had been installed pursuant to a court order, and that on the day in question, they tracked the BMW from Queens County into New Hyde Park in Nassau County. Officers conducting surveillance observed the two occupants of the car, the defendant and another person, engage in conduct consistent with burglarizing a home. After the BMW drove away, the officers went into the home, which showed signs of forced entry and appeared to have been ransacked. They relayed the apparent burglary to other officers who were monitoring the BMW by GPS. Those officers followed the BMW back to Queens and conducted a traffic stop, during which they observed items that appeared to be proceeds from the burglary and burglar's tools. The defendant and his accomplice were arrested, and items retrieved from the BMW were later identified as having been taken from the home in Nassau County. The defendant appeals from the judgment of conviction.

The Supreme Court held a hearing on that branch of the defendant's omnibus motion which was to suppress physical evidence taken from the BMW and his person because the GPS device was unlawfully installed on the BMW. At the conclusion of the hearing, the court issued a decision from the bench denying that branch of the omnibus motion, and then issued a written order denying that branch of the omnibus motion for the reasons stated on the record. The defendant contends that the court erroneously denied that branch of his omnibus motion. The People's contention that the defendant lacked standing to challenge the warrant authorizing the installation and use of the GPS device is unpreserved for appellate review, as the People did not raise this ground at the suppression hearing (see People v. Hunter, 17 N.Y.3d 725, 726, 926 N.Y.S.2d 401, 950 N.E.2d 137 ; People v. Stith, 69 N.Y.2d 313, 320, 514 N.Y.S.2d 201, 506 N.E.2d 911 ; cf. People v. Concepcion, 17 N.Y.3d 192, 195–196, 929 N.Y.S.2d 541, 953 N.E.2d 779 ). Nonetheless, contrary to the defendant's contention, the affidavit supporting the application for the warrant to install and use the GPS device was sufficient to support a reasonable belief that evidence of illegal activity would be found if the vehicle were monitored with a GPS device (see People v. Wilson, 82 A.D.3d 797, 798, 917 N.Y.S.2d 677 ; People v. Levy, 65 A.D.3d 1057, 1057–1058, 884 N.Y.S.2d 881, affd 15 N.Y.3d 510, 914 N.Y.S.2d 721, 940 N.E.2d 547 ). Accordingly, the warrant was supported by probable cause, and we agree with the court's determination denying that branch of the defendant's omnibus motion which was to suppress physical evidence.

"Under our State Constitution and common law, a defendant has the right to be tried in the county where the crime was committed unless the Legislature has provided otherwise" ( People v. Greenberg, 89 N.Y.2d 553, 555, 656 N.Y.S.2d 192, 678 N.E.2d 878 ; see N.Y. Const., art. I, § 2 ; People v. Ribowsky, 77 N.Y.2d 284, 291, 567 N.Y.S.2d 392, 568 N.E.2d 1197 ). When a defendant challenges the chosen venue, the People have the burden to prove at trial, by a preponderance of the evidence, either that the county of prosecution is where the crime was committed or that a statutory exception applies (see People v. Greenberg, 89 N.Y.2d at 555–556, 656 N.Y.S.2d 192, 678 N.E.2d 878 ; People v. Ribowsky, 77 N.Y.2d at 291–292, 567 N.Y.S.2d 392, 568 N.E.2d 1197 ). The Legislature has provided that a person may be convicted of an offense in a particular county if, among other possibilities, conduct occurred within that county sufficient to establish a conspiracy to commit that offense (see CPL 20.40[1][b] ). The Legislature has also provided that a person may be prosecuted for...