People v. Perez

171 A.D.2d 454, 567 N.Y.S.2d 224, 1991 N.Y. App. Div. LEXIS 3218

Opinion

Judgment, Supreme Court, New York County (Stephen Crane, J.), rendered April 4, 1989, convicting defendant after a nonjury trial of attempted burglary in the second degree and possession of burglar’s tools, and sentencing him to an indeterminate term of imprisonment of two to four years and a concurrent one year jail term, respectively, unanimously affirmed.

Defendant’s motion to suppress physical evidence was properly denied. At approximately 3:00 a.m. on October 30, 1988, Susan Schiffman heard suspicious noises and voices at her neighbor’s apartment door. Knowing this neighbor was vacationing, and after calling his apartment and not receiving a response, she called the police. The arresting officer discovered defendant and an accomplice crouched behind a cardboard box in a stairway leading to the roof; the accomplice carried an axe.

Any possible innocent interpretation of the unfolding events disappeared when defendant and Sanchez attacked the officer. Clearly, defendant’s arrest was supported by probable cause. (People v McRay, 51 NY2d 594.) Concur — Sullivan, J. P., Milonas, Rosenberger, Asch and Smith, JJ.