People v. Powell

• Decision Date: 05 December 2012
• Citation: 955 N.Y.S.2d 608,101 A.D.3d 756,2012 N.Y. Slip Op. 08342
• Parties: The PEOPLE, etc., respondent, v. Carlton POWELL, appellant.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 756
955 N.Y.S.2d 608
2012 N.Y. Slip Op. 08342

The PEOPLE, etc., respondent,
v.
Carlton POWELL, appellant.

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

Dec. 5, 2012.

[955 N.Y.S.2d 609]

Steven Banks, New York, N.Y. (Richard Joselson and Davis Polk & Wardwell, LLP [David C. Newman], of counsel; Katherine A. Marshall on the brief), for appellant.

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

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.

[101 A.D.3d 757]Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered December 15, 2009, convicting him of burglary in the third degree, criminal mischief in the third degree, criminal possession of stolen property in the fifth degree (two counts), and trespass, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of the defendant's omnibus motion to suppress identification testimony and physical evidence.

ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, the defendant's omnibus motion to suppress identification testimony and physical evidence is granted, the count of the indictment charging the defendant with criminal mischief in the third degree is dismissed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings on the counts of the indictment charging the defendant with burglary in the third degree, criminal possession of stolen property in the fifth degree (two counts), and trespass.

Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally insufficient to establish the defendant's guilt of criminal mischief in the third degree beyond a reasonable doubt. The evidence was insufficient to establish, beyond a reasonable doubt, that the damage to the subject property exceeded the sum of $250 ( seePenal Law § 145.05[2]; People v. Quigley, 70 A.D.3d 1411, 1412, 894 N.Y.S.2d 628;

[955 N.Y.S.2d 610]

People v. Jeffries, 151 A.D.2d 964, 542 N.Y.S.2d 414). Although this issue is unpreserved for appellate review ( seeCPL 470.05[2] ), we reach it in the exercise of our interest of justice jurisdiction ( seeCPL 470.15[3][c]; [6] ).

Contrary to the People's contention, the defendant's contention that the hearing court improperly relied upon the fellow-officer rule to conclude that his arrest was supported by probable cause is preserved for appellate review, since the hearing court expressly decided that there was probable cause for the defendant's arrest based upon the fellow-officer rule ( seeCPL 470.05[2]; People v. Feingold, 7 N.Y.3d 288, 290, 819 N.Y.S.2d 691, 852 N.E.2d 1163;People v. Prado, 4 N.Y.3d 725, 726, 790 N.Y.S.2d 418, 823 N.E.2d 824;People v. Berry, 49 A.D.3d 888, 889, 854 N.Y.S.2d 507). Moreover, upon a review of the hearing record, we conclude that the defendant's motion to suppress identification testimony and physical evidence should have been granted. [101 A.D.3d 758]Under the fellow-officer rule, if an arresting officer lacks personal knowledge sufficient to establish probable cause, the arrest will be lawful if the officer acts upon the direction of or as a result of communication with a superior or fellow officer or another police department, provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest ( see People v. Ramirez–Portoreal, 88 N.Y.2d 99, 113, 643 N.Y.S.2d 502, 666 N.E.2d 207;People v. Lypka, 36 N.Y.2d 210, 213, 366 N.Y.S.2d 622, 326 N.E.2d 294). Here, the People did not present evidence to establish that the officers who stopped and detained the defendant and his codefendant actually received any information from another officer who may have possessed probable cause. Although the People...