People v. Velez

• Decision Date: 28 December 1992
• Citation: 592 N.Y.S.2d 270,188 A.D.2d 670
• Parties: The PEOPLE, etc., Respondent, v. Jose VELEZ, a/k/a Jose Rivera, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 270

592 N.Y.S.2d 270

188 A.D.2d 670

The PEOPLE, etc., Respondent, v. Jose VELEZ, a/k/a Jose Rivera, Appellant.

Supreme Court of New York, Appellate Division Second Department.

December 28, 1992

Alan Schneier, Valley Stream, for appellant. James M. Catterson, Jr., Dist. Atty., Riverhead (Donald Byrnes, of counsel), for respondent.

Appeals by the defendant from two judgments of the Supreme Court, Suffolk County (Mallon, J.), both rendered July 19, 1990, convicting him of burglary in the second degree (two counts) under Indictment No. 843/89, upon a jury verdict, and attempted burglary in the second degree under Indictment No. 1231/89, upon his plea of guilty, and imposing sentences. The appeal under Indictment No. 843/89 brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress evidence and identification testimony. ORDERED that the judgments are affirmed. Viewing the evidence adduced at the trial under Indictment No. 843/89 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 sufficient to establish the defendant's guilt beyond a reasonable doubt (see, Penal Law § 140.25). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15). The People's case consisted of both circumstantial and direct evidence. Therefore, contrary to the defendant's contention, the so-called "moral certainty" standard does not apply (see, People v. Barnes, 50 N.Y.2d 375, 429 N.Y.S.2d 178, 406 N.E.2d 1071; cf., People v. Benzinger, 36 N.Y.2d 29, 364 N.Y.S.2d 855, 324 N.E.2d 334). The court properly declined to suppress evidence, finding that the police legally stopped the defendant. A review of the record demonstrates that the police had reasonable suspicion for stopping the defendant on the street (see, People v. Hollman, 79 N.Y.2d 181, 581 N.Y.S.2d 619, 590 N.E.2d 204), and that this reasonable suspicion escalated to probable cause prior to his arrest (see, People v. Hollman, supra; People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562). We similarly find without merit the defendant's contention that a witness for the People participated in an unduly suggestive showup procedure. The identification of the defendant was the product of the witness' own efforts; no police identification procedures were...