People v. Franco

192 A.D.2d 719, 596 N.Y.S.2d 860

Opinion

—Appeal by the defendant from (1) a judgment of the Supreme Court, Richmond County (Kuffner, J.), rendered December 13, 1989, convicting him of burglary in the second degree, grand larceny in the third degree, and possession of burglar’s tools, upon a jury verdict, and imposing sentence, and (2) by permission, from an order of the same court dated May 31, 1991, which denied his motion to vacate the judgment pursuant to CPL 440.10. The appeal from the judgment 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 and the order are affirmed.

The defendant and his codefendant (see, People v Anderson, 192 AD2d 714 [decided herewith]) were caught in the act of burglarizing a residence on Staten Island. There was unquestionably probable cause to arrest both men, in light of all the proof adduced at the hearing, including the evidence relating to (1) the information furnished to the investigating officers by a civilian witness, who had recently seen the two men enter the backyard of the premises in question, (2) the signs of forced entry observed by the officers, and (3) the unsuccessful attempt made by the two men to flee immediately upon their having become aware of the presence of the officers (see generally, People v Nelson, 179 AD2d 784; People v Kelland, 171 AD2d 885).

The defendant’s post-judgment motion was properly denied. The arguments raised therein were either matters of record (CPL 440.10 [2] [b]; 440.30 [2]) or were rebutted by unquestionable documentary proof (CPL 440.30 [4] [c]).

We have examined the defendant’s remaining contentions, including those raised in his supplemental pro se brief, and find them to be without merit. Bracken, J. P., Eiber, Ritter and Santucci, JJ., concur.