People v. Foster

209 A.D.2d 348, 619 N.Y.S.2d 22, 1994 N.Y. App. Div. LEXIS 11809

Opinions

—Judgment, Supreme Court, New York County (Robert Haft, J., on motion to suppress physical evidence; Jerome Marks, J., at hearing to suppress identification testimony; Edward McLaughlin, J., at trial and sentence and hearing to suppress physical evidence), rendered June 6, 1990, convicting the defendant, after a jury trial, of burglary in the second degree and two counts of robbery in the second degree and sentencing him, as a second felony offender to, concurrent terms of 5 to 10 years in prison, affirmed.

By order of this Court entered October 14, 1993 [197 AD2d 411], this appeal was originally held in abeyance and the matter remanded to the trial court for a hearing on defendant’s motion to suppress physical evidence. The hearing mandated by this Court’s order was held on January 3, 1994.

At the hearing only Officer Michael Davin testified. The witness stated that at approximately 11:45 A.M., while he was seated in uniform in a marked patrol car, a uniformed United Parcel Service (UPS) driver approached him and pointed out three males who were walking about 20 feet from the officer on East Thirty-Third Street. The UPS driver stated to the officer that the three had "just robbed someone”. All three of the individuals were wearing leather jackets, which appeared to the officer to be brand new. Defendant was wearing a black jacket, another wore a brown jacket with the price tags still on it and the third wore a red jacket.

The officer testified that he followed the three individuals and that at a point in time shortly thereafter they turned and saw him. According to the officer upon seeing him the individual wearing the brown leather jacket ran across Thirty-Third Street and discarded the jacket. The officer attempted to apprehend the fleeing suspect but lost him. Meanwhile, defendant and the other individual walked into the nearby Empire State Building.

Officer Davin returned to the area near the Empire State Building and, while he was describing what had just transpired to another officer, the defendant and the other suspect emerged still wearing the leather jackets. Police Officer Davin immediately seized the two, placed them against the wall, frisked them and handcuffed them. While waiting for additional officers Police Officer Davin heard a transmission reporting the robbery of jackets from a clothing store one block away. The defendant and his companion were transported to the store where they were identified and arrested.

By order entered January 10, 1994 the trial court denied the defendant’s motion in its entirety. We find no basis upon which to disturb the hearing court’s finding fully crediting the testimony of Police Officer Davin. The officer’s testimony supports trial court’s conclusion that based upon the information supplied by citizen-informer, and the subsequent observations made by the officer, the seizure of the defendant was proper (People v Benjamin, 51 NY2d 267; People v Martinez, 180 AD2d 403, lv denied 79 NY2d 1004). We find also that the manner in which the defendant was restrained was in accordance with the procedure approved in People v Allen (73 NY2d 378, 379-380). We have reviewed the other issues raised by the defendant-appellant on the direct appeal and find them to be meritless. Concur—Wallach, Kupferman and Ross, JJ.