People v. Reichbach

• Decision Date: 01 June 1987
• Citation: 515 N.Y.S.2d 891,131 A.D.2d 515
• Parties: The PEOPLE, etc., Respondent, v. Mark REICHBACH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 891

515 N.Y.S.2d 891

131 A.D.2d 515

The PEOPLE, etc., Respondent, v. Mark REICHBACH, Appellant.

Supreme Court, Appellate Division,

Second Department.

June 1, 1987.

Michael Chasen, Bronx (Irving Cohen, of counsel), for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Elizabeth Cronin and Richard E. Weill, of counsel), for respondent.

Before BRACKEN, J.P., and EIBER, SPATT and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Nicolai, J.), rendered June 10, 1983, convicting him of criminal possession of stolen property in the second degree (two counts), and violations of Local Laws, 1981, No. 4, of the County of Westchester §§ 863.226(A), 863.227(A), and 863.227(C), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence and the defendant's statements to law enforcement authorities.

ORDERED that the judgment is affirmed.

The issuance of a warrant to search the defendant's business premises was proper. The police informant, who sold the stolen property in question to the defendant, was clearly reliable and had a sound basis for his knowledge (see, People v. Johnson, 66 N.Y.2d 398, 402, 497 N.Y.S.2d 618, 488 N.E.2d 439; People v. Griminger, 127 A.D.2d 74, 513 N.Y.S.2d 995). Moreover, contrary to the defendant's contention, the record reveals that the information he gave to the police was specific as to the location of the defendant's business premises, and provided probable cause to search it.

While executing the search warrant the police seized the defendant's ledger book, an item not specifically designated in the search warrant. However, the record makes clear that the defendant voluntarily consented to allow the police to look at the ledger book, and that the ledger book contained evidence of criminality (see, People v. Horvath, 108 A.D.2d 926, 927, 485 N.Y.S.2d 818). Therefore, the seizure of the ledger book was not improper.

The defendant's objection to the failure to suppress his statements is based upon a challenge to the credibility of the People's witness Detective Hughes. It is well settled that the determination of the hearing court which had the advantage of having seen and heard the testimony must be accorded great weight, and should not be lightly disturbed on appeal where its assessment of the credibility of the witnesses was not "clearly erroneous" (see, People v. Lambert, 125 A.D.2d 495, 497, 509 N.Y.S.2d 413; People v. Smith, 118 A.D.2d 605, 606, 499 N.Y.S.2d 211). Based on this record, it cannot be said that the hearing court improperly credited Detective Hughes' testimony.

Further, there was sufficient evidence to support the defendant's conviction of criminal possession of stolen property. There is a statutory rebuttable presumption that a "collateral loan broker or a person in the business of buying, selling or otherwise dealing in property who possesses stolen property * * * know[s] that such property was stolen if he obtained it without having ascertained by reasonable inquiry that the person from whom he obtained it had a legal right to possess it" (Penal Law § 165.55[2] ). In this case, there was evidence that the defendant was a collateral loan broker and was in the business of buying and selling jewelry and that he failed to take any steps to reasonably ascertain that the person from whom he obtained the stolen jewelry in question...