People v. Wilson

• Decision Date: 01 March 2011
• Citation: 917 N.Y.S.2d 677,82 A.D.3d 797
• Parties: The PEOPLE, etc., respondent, v. Reginald WILSON, appellant.
• Court: New York Supreme Court — Appellate Division

917 N.Y.S.2d 677 82 A.D.3d 797 The PEOPLE, etc., respondent, v. Reginald WILSON, appellant. Supreme Court, Appellate Division, Second Department, New York. March 1, 2011.

Stephen C. Filler, Tarrytown, N.Y., for appellant, and appellant pro se.

Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Richard Longworth Hecht, and Anthony J. Servino of counsel), for respondent.

JOSEPH COVELLO, J.P., PLUMMER E. LOTT, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Neary, J.), rendered July 6, 2007, convicting him of burglary in the second degree, grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree, possession of burglar's tools, and obstructing governmental administration in the second degree, 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.

ORDERED that the judgment is affirmed.

The defendant was arrested on June 30, 2005, shortly after a ground-floor apartment in the Town of Greenburgh had been burglarized. At the time of the burglary,the defendant's vehicle was under the surveillance of the Harrison Police Department, which was monitoring his movements with a global positioning system (hereinafter GPS) tracking device installed on his vehicle without his knowledge, pursuant to a court order. At the site of the burglary, the police observed the defendant cross from one side of the apartment complex to another, empty-handed, and exit the complex a short time later carrying a black plastic bag with "yellowish" writing on it, which appeared to have something in it. The defendant drove away in his vehicle, and the police stopped him a mile and a quarter away. Although the police observed, on the front seat, a black plastic bag bearing a "gold" logo, and knew the defendant had just left the Greenburgh apartment complex, the defendant falsely asserted that he was coming from Valhalla and, inter alia, accused the police of stopping him because of his race. The defendant was arrested for obstructing governmental administration in the second degree after he tried to pull the driver's side door shut when the police opened it after he refused to step out of the vehicle when asked.

The hearing court properly denied that branch of the defendant's omnibus motion which was to suppress physical evidence taken from the vehicle and his person. The defendant contends that the GPS device was unlawfully installed on his vehicle. The affidavits supporting the applications for the warrants to install and use the GPS device established that the defendant had an extensive history of burglary convictions, and was conclusively identified as being at the scene of a May 2005 double daytime burglary in a West Harrison apartment complex, carrying a plastic bag, from which he drove away in a vehicle registered to him in Queens. The affidavits also noted that the defendant was identified as a possible suspect in an ongoing burglary ring in Nassau County, where he previously was convicted of a burglary. Accordingly, the affidavits were sufficient to support a reasonable belief that evidence of illegal activity would be found if the defendant's vehicles were monitored with a GPS device ( cf. 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; People v. Watts, 58 A.D.3d 647, 871 N.Y.S.2d 341).

The record also supports the hearing court's determination that the police had reasonable suspicion to stop the defendant's vehicle shortly after the burglary, having knowledge of the defendant's numerous burglary offenses, his conclusive identification as being present at another Westchester County apartment complex during the time of a previous daytime burglary where he was observed carrying a black plastic bag, and his conduct in walking from one side of the Greenburgh complex to the other, empty-handed, only to exit a short time later carrying a black plastic bag which appeared to have something in it ( cf. People v. Fleming, 65 A.D.3d 702, 703, 884 N.Y.S.2d 477).

The defendant failed to preserve for appellate review his challenge to the lawfulness of the search of his vehicle following his arrest ( see CPL 470.05[2] ). In any event, under the circumstances surrounding the defendant's arrest, the police had probable cause to believe that the vehicle contained contraband, evidence of a crime, or a means of escape, based on the search of his person,...