In re Victor M.

35 A.D.3d 180, 825 N.Y.S.2d 468

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 7, 2006
• Status: Published

Opinions

Order of disposition, Family Court, Bronx County (Alma Cordova, J.), entered on or about October 18, 2005, which adjudicated appellant a juvenile delinquent upon his admission that he had committed acts which, if committed by an adult, would constitute the crime of criminal possession of a controlled substance in the fifth degree, and placed him in the custody of the New York State Office of Children and Family Services for a period of up to 18 months, affirmed, without costs.

On June 4, 2005 at approximately 11:55 p.m., uniformed police officers Recio and his partner were conducting “vertical” patrols in various buildings in the vicinity of 179th to 181st streets in the Bronx. “Vertical” patrols are conducted by officers walking through each floor in buildings designated as “clean hall buildings” to prevent illegal activity. Trespassers in these buildings are subject to prosecution.

Recio testified at the suppression hearing that while patrolling some interconnected buildings, he and his partner observed appellant and three others playing a dice game in a hallway. Recio observed the dice and U.S. currency being used in the game. Although he could not specifically recall in which building he made this observation, Recio testified that he and appellant subsequently exited the building located at 2123 Boston Road.

Recio intended to issue appellant a summons and asked for identification.¹ Appellant stated that he lived in the building but did not have any identification. He offered to go to his apartment to get some but Recio refused. A woman who claimed to be appellant’s mother appeared at the scene but she also had no identification. Redo decided to take appellant to the precinct to verify his age and pedigree information for issuance of the summons. Appellant was transported to the precinct in a police vehicle.

Recio testified that once at the precinct, he followed standard procedure by searching appellant in the presence of the desk sergeant. Drugs were found in appellant’s front right pants pocket and he was arrested.

After the conclusion of the suppression hearing, the court denied the motion to suppress, finding that Recio’s observation of appellant gambling in the hallway provided him with probable cause for an arrest. The subsequent search was thus incident to a lawful arrest.

We agree. Based upon his observations of appellant participating in apparent gambling activity in the hallway² of a “clean halls building,” Officer Recio had a reasonable basis to believe that appellant had committed an offense in his presence. While not specifically articulated on the record, the observations testified to by Officer Recio fall within the definitions of trespass (Penal Law § 140.05) and loitering (Penal Law § 240.35 [2]).³ When appellant failed to produce identification, Officer Recio acted properly and reasonably in transporting appellant to the precinct for verification of his identity (People v Hernandez, 27 AD3d 292 [2006], lv denied 6 NY3d 848 [2006]). The fact that the search of appellant occurred “minutes before the formal arrest is immaterial and did not vitiate the search” (People v Valenzuela, 226 AD2d 154, 155 [1996], lv denied 88 NY2d 1072 [1996]). Under these circumstances, Officer Recio’s actions were reasonable. Moreover, we find no basis on this record to disturb the Family Court’s credibility determinations. Concur—Mazzarelli, J.E, Gonzalez and Sweeny, JJ.

1 . Although the record does not specifically state the offense for which Officer Recio intended to issue the summons, he testified at the suppression hearing that theré was “a lot of trespassing going on in most of the buildings.” On cross-examination on this point, the following exchange occurred:

“Q. Now, it’s your testimony that you do the verticals because you find a lot of trespassers?

“A. We are asked to do verticals of the building because they are clean hall buildings. When someone does not live in the building and they have no indication to visit anyone its allowed to be prosecuted.”

2 . It is noted that both appellant and the respondent presentment agency referred to the area in question as a “hallway.”

3 . The fact that appellant was not actually charged with a violation was no doubt overshadowed by the drugs later found. The propriety of the officer’s actions must be seen in the context of whether there was sufficient basis for the issuance of a summons. Contrary to the dissent’s argument, the facts supported, at this vital stage, a number of possible offenses. Which particular offense was contemplated was not articulated and, for the purposes of this appeal, is not essential.