People v. Vandivert

Appellate Division of the Supreme Court of New York

People v. Vandivert

265 A.D.2d 181, 699 N.Y.S.2d 321, 1999 N.Y. App. Div. LEXIS 9793

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 7, 1999

StatusPublished

This text of 265 A.D.2d 181 (People v. Vandivert) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Vandivert, 265 A.D.2d 181, 699 N.Y.S.2d 321, 1999 N.Y. App. Div. LEXIS 9793 (N.Y. Ct. App. 1999).

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Opinion

—Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered December 18, 1996, convicting defendant, after a jury trial, of criminal possession of stolen property in the fourth degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years and a fine of $5,000, unanimously modified, as a matter of discretion in the interest of justice, to the extent of deleting that portion of the sentence providing for payment of a fine, and otherwise affirmed.

Defendant’s suppression motion was properly denied. The officer, who had been involved in dozens of arrests stemming from fencing operations, observed defendant and a companion running and looking over their shoulders, whereupon defendant entered a pawn shop, known for buying and selling stolen goods, while the other man waited outside. From outside the officer was able to observe defendant give the employee of the pawn shop a canvas bag and run from the shop with cash in his hand. The totality of these factors clearly justified a common-law inquiry (see, People v Hollman, 79 NY2d 181). When the officer asked defendant what he had sold, defendant’s reply that he had only sold a ring was sufficiently inconsistent with the officer’s observations to warrant the momentary detention of defendant while the police spoke to the shop employee, [182]*182who confirmed the falsity of defendant’s statements. When the shop employee showed the officer the canvas bag, and the officer viewed its incriminating contents, there was probable cause to arrest defendant.

We find the imposition of a fine to be an improvident exercise of discretion. Concur — Rosenberger, J. P., Tom, Mazzarelli, Lerner and Friedman, JJ.

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—Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered December 18, 1996, convicting defendant, after a jury trial, of criminal possession of stolen property in the fourth degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years and a fine of $5,000, unanimously modified, as a matter of discretion in the interest of justice, to the extent of deleting that portion of the sentence providing for payment of a fine, and otherwise affirmed.

Defendant’s suppression motion was properly denied. The officer, who had been involved in dozens of arrests stemming from fencing operations, observed defendant and a companion running and looking over their shoulders, whereupon defendant entered a pawn shop, known for buying and selling stolen goods, while the other man waited outside. From outside the officer was able to observe defendant give the employee of the pawn shop a canvas bag and run from the shop with cash in his hand. The totality of these factors clearly justified a common-law inquiry (see, People v Hollman, 79 NY2d 181). When the officer asked defendant what he had sold, defendant’s reply that he had only sold a ring was sufficiently inconsistent with the officer’s observations to warrant the momentary detention of defendant while the police spoke to the shop employee, [182]*182who confirmed the falsity of defendant’s statements. When the shop employee showed the officer the canvas bag, and the officer viewed its incriminating contents, there was probable cause to arrest defendant.

We find the imposition of a fine to be an improvident exercise of discretion. Concur — Rosenberger, J. P., Tom, Mazzarelli, Lerner and Friedman, JJ.

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Bluebook (online)

265 A.D.2d 181, 699 N.Y.S.2d 321, 1999 N.Y. App. Div. LEXIS 9793, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-vandivert-nyappdiv-1999.

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