People v. Wallace

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before LAWRENCE; RUBIN; LAWRENCE
• Citation: People v. Wallace, 549 N.Y.S.2d 515, 153 A.D.2d 59 (N.Y. App. Div. 1989)
• Decision Date: 29 December 1989
• Parties: The PEOPLE, etc., Respondent, v. Avery WALLACE, Appellant.

Page 515

549 N.Y.S.2d 515

153 A.D.2d 59

The PEOPLE, etc., Respondent, v. Avery WALLACE, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 29, 1989.

David Epstein, New York City, for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Michael Gore, Sherry B. Bokser and Jonathan D. Sands, of counsel), for respondent.

Before LAWRENCE, J.P., and RUBIN, BALLETTA and ROSENBLATT, JJ.

RUBIN, Justice.

The defendant and two codefendants, Michael Davis and James Fredericks, were charged with burglary in the third degree and related offenses arising from a burglary of Joe's Department Store, located at 1026 Manhattan Avenue, in Brooklyn, on September 13, 1985, at about 1:15 A.M. The defendants were apprehended by the police when they were discovered leaving the immediate vicinity of the crime in a red Renault automobile which contained stolen merchandise, bolt cutters, and a broken padlock used by the shopkeeper to secure the scissor gates in front of the burglarized store. At the close of a joint bench and jury trial, the Trial Justice found Fredericks not guilty of the charges and the jury rendered its verdict convicting the defendant and Davis of burglary in the third degree.

On this appeal, the principal issues are whether the court properly denied the defendant's motion for a severance and whether the novel procedure employed by the trial court in conducting a simultaneous bench and jury trial was unauthorized or so prejudicial as to have deprived the defendant of a fair trial. Additionally, the defendant contends that the trial court erroneously denied that branch of his omnibus motion which was to suppress physical evidence seized from the Renault and that the evidence adduced at trial was legally insufficient to establish his guilt.

The hearing court properly determined that the defendant's arrest was based on probable cause and that all evidence derived therefrom was admissible at trial. Contrary to the defendant's contention, the police conduct in this case was justified at its inception and as the officers gathered information during their encounter with the defendants, the escalating police responses were reasonably related in scope and intensity to the developing circumstances.

On September 13, 1985, at about 1:15 A.M., Police Officer Augoustatos and his partner were on routine patrol in a marked radio car, traveling southbound on Manhattan Avenue. As they approached the intersection of Manhattan Avenue and Freeman Street, Officer Augoustatos noticed a red Renault automobile parked, facing west, on Freeman Street. The Renault then "took off" and entered the intersection against a steady red traffic light. Simultaneously with the Renault's acceleration through the intersection, Officer Augoustatos heard an alarm ringing from the direction of Joe's Department Store. He also observed a blond woman pointing both in the direction of Joe's Department Store and at the Renault, while shouting "Steal, Steal". Without stopping the radio car, Officer Augoustatos's partner drove after the Renault. Upon turning westbound onto Freeman Street, Officer Augoustatos saw a black male running alongside the Renault. This man "ducked out of sight" as the radio car passed through the intersection in pursuit of the Renault. After proceeding four blocks, the officers forced the driver of the Renault to pull the vehicle over to the side of the road. Based upon these observations, the police acted properly when they stopped the Renault to briefly detain the occupants for questioning. Not only did the officers have reasonable suspicion sufficient to stop the Renault for a traffic violation (see, People v. Boyce, 121 A.D.2d 552, 504 N.Y.S.2d 33; People v. Rosario, 94 A.D.2d 329, 333, 465 N.Y.S.2d 211), but they also had sufficient information to form a reasonable suspicion that the occupants had perpetrated a burglary of the department store (see, People v. Taylor, 128 A.D.2d 653, 655, 512 N.Y.S.2d 895; People v. Finlayson, 76 A.D.2d 670, 431 N.Y.S.2d 839, lv. denied 51 N.Y.2d 1011, 435 N.Y.S.2d 1030, 417 N.E.2d 98, cert. denied 450 U.S. 931, 101 S.Ct. 1391, 67 L.Ed.2d 364). "The mere possibility that the occupants of the vehicle were not the actual perpetrators did not require [the officers] to simply shrug [their] shoulders and permit the car to proceed on its way unimpeded" (People v. Finalyson, supra, at 677, 431 N.Y.S.2d 839).

Once the vehicle was lawfully stopped, Officer Augoustatos shined his flashlight through the window into the car's interior and made the following observations: the defendant was in the driver's seat, the codefendant Davis was occupying the front passenger seat, and the codefendant Fredericks was seated in the rear. A wad of money and a cut padlock were on the passenger floor between Davis's feet, and a large cardboard box was on the back seat next to Fredericks. The officer also observed another large cardboard box protruding from the partially open trunk. Next to this box was a pair of bolt cutters. Officer Augoustatos's partner then radioed for another unit to investigate the vicinity where they had first observed the parked Renault. Within two to three minutes of the initial stop of the Renault, the officers received confirmation of a burglary at Joe's Department Store. The officers then placed the defendants under arrest and seized the physical evidence.

Clearly Officer Augoustatos's use of a flashlight to illuminate the interior of the Renault did not constitute an unreasonable intrusion (see, People v. Cruz, 34 N.Y.2d 362, 357 N.Y.S.2d 709, 314 N.E.2d 39, amended 35 N.Y.2d 708, 361 N.Y.S.2d 641, 320 N.E.2d 274; People v. Baldanza, 138 A.D.2d 722, 526 N.Y.S.2d 535; People v. Perez, 135 A.D.2d 582, 521 N.Y.S.2d 798). Furthermore, the officer's observation of bolt cutters, a broken padlock, and the apparent proceeds of a burglary inside the vehicle, combined with the confirmatory information provided by his fellow officers that the department store had in fact, been burglarized, elevated the officer's level of reasonable suspicion to probable cause to arrest the defendant and seize the contraband (see, People v. Taylor, 128 A.D.2d 653, 654-655, 512 N.Y.S.2d 895; People v. Rivera, 124 A.D.2d 682, 508 N.Y.S.2d 57; People v. Springer, 118 A.D.2d 606, 499 N.Y.S.2d 449).

We also reject the defendant's contention that the evidence adduced at the trial was legally insufficient to establish his guilt of burglary. "The well-settled standard of proof in circumstantial evidence cases is that the facts from which the inference of defendant's guilt is drawn must be inconsistent with the defendant's innocence and must exclude to a moral certainty every other reasonable hypothesis" (People v. Giuliano, 65 N.Y.2d 766, 767-768, 492 N.Y.S.2d 939, 482 N.E.2d 557). The prosecution met this standard (see, e.g., People v. Ayers, 135 A.D.2d 825, 522 N.Y.S.2d 929; People v. Martin, 131 A.D.2d 884, 517 N.Y.S.2d 241; People v. La Furno, 104 A.D.2d 1008, 481 N.Y.S.2d 5). At the trial, the defendant, through the testimony of the codefendant Fredericks and his wife, attempted to rebut the reasonable inference derived from the prosecution's evidence that he intentionally and knowingly assisted Davis in the commission of the burglary of Joe's Department Store. According to the defense witnesses, the defendant was playing cards at Fredericks's house when he received a telephone call from Davis at 12:30 A.M. After a brief telephone conversation with Davis, the defendant announced that he was going to borrow Davis's mother's car to pick Davis up. Shortly thereafter, the defendant returned with the car and Fredericks accompanied the defendant to the location where Davis was to be picked up. The defendant parked the car "a little ways" from the corner of Manhattan Avenue and Freeman Street and waited for Davis. After about three minutes, Davis appeared with an unidentified man; each was carrying a large cardboard box. Davis placed his box in the back seat of the car and hopped in the front seat, while his companion was placing the other box in the trunk. The defendant then drove off before Davis's companion could enter the car. The latter ran alongside the car until it reached the intersection, at which time Fredericks observed a police car approaching and heard a burglar alarm ringing. Based on this testimony, the trier of fact could readily reject the defendant's version that he was not a knowing participant, but reach a contrary conclusion with respect to codefendant Fredericks. Based upon our factual review power, we are satisfied that the evidence established the defendant's guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see CPL 470.15[5].

We also find no merit to the defendant's contention that the trial court improvidently exercised its discretion in denying his motion for a separate trial predicated upon his intention to call the codefendant Davis as a defense witness. Where proof against multiple defendants is supplied by the same evidence, only the most cogent reasons warrant a separate trial (see, People v. Ricardo B., 73 N.Y.2d 228, 233, 538 N.Y.S.2d 796, 535 N.E.2d 1336), particularly when the complainant, as here, is elderly and in failing health. At no time did Davis or his attorney advise the court that Davis would testify on the defendant's behalf if a separate trial were granted. A court is not required to order separate trials where the possibility of the codefendant's testifying is merely colorable or speculative (People v. Bornholdt, 33 N.Y.2d 75, 87, 350 N.Y.S.2d 369, 305 N.E.2d 461, cert. denied sub nom. Victory v. New York, 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 109). Moreover, the defendant failed to offer proof as to the substance of Davis's testimony and that his testimony would be exculpatory. Absent a proper showing of need for the codefendant Davis's testimony, the denial of the defendant's...