People v. Harmon

293 A.D.2d 303, 739 N.Y.S.2d 710, 2002 N.Y. App. Div. LEXIS 3578

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 9, 2002
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Bonnie Wittner, J., at suppression hearing; George Daniels, J., at jury trial and sentence), convicting defendant of two counts of robbery in the first degree and two counts of criminal possession of stolen property in the fifth degree, and sentencing him, as a second felony offender, to an aggregate term of 12 years, unanimously affirmed.

Defendant’s suppression motion was properly denied. The victims of a series of robberies described the robber as a black man in his twenties, approximately 5 feet 9 inches tall, 170 to 175 pounds, with a pencil-thin beard and mustache, wearing a down camouflage jacket with a white circle on the left breast. This description was sufficiently specific to provide the police with probable cause to arrest defendant (see, People v McKethan, 225 AD2d 800, lv denied 88 NY2d 938), particularly since defendant was arrested in the general vicinity of the crimes and at approximately the same time of day as the crimes (see, People v Williams, 273 AD2d 79, lv denied 95 NY2d 940). Although defendant was arrested seven days after the crimes, in the circumstances of this case, the passage of time did not render it less than probable that defendant was the perpetrator (see, People v Polk, 166 AD2d 177, 179, lv denied 76 NY2d 1023). Since “[p]robable cause does not require proof to a mathematical certainty, or proof beyond a reasonable doubt” (People v Mercado, 68 NY2d 874, 877), the People were not required to prove that defendant’s jacket was unique. The jacket was sufficiently distinctive, when coupled with the balance of the description and the surrounding circumstances. Concur— Nardelli, J.P., Mazzarelli, Andrias, Rosenberger and Friedman, JJ.