People v. Wilks

50 A.D.3d 520, 856 N.Y.S.2d 94

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 24, 2008
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Lewis Bart Stone, J, at suppression hearing; Ronald A. Zweibel, J., at plea and sentence), rendered April 6, 2006, convicting defendant of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to a term of 1½ to 3 years, unanimously affirmed.

The court properly denied defendant’s suppression motion. The People met their burden at the suppression hearing of justifying the challenged activity by showing that the store detectives who stopped and searched defendant were not state actors (see People v Jones, 47 NY2d 528, 533 [1979]). Defendant offered no evidence to contradict the People’s proof, thus failing to satisfy his ultimate burden (see People v Di Stefano, 38 NY2d 640, 652 [1976]). The testifying store detective gave competent testimony that a nontestifying colleague who also participated in the arrest was neither a designated special patrolman nor otherwise an agent of the police. In any event, the record also supports the court’s alternative holding that defendant’s arrest was based on probable cause. We have considered and rejected defendant’s remaining arguments. Concur—Tom, J.P., Mazzarelli, Williams and Sweeny, JJ.