Opinion
No. 2012–751 K CR.
05-19-2015
The PEOPLE of the State of New York, Respondent, v. Sergey BARSUKOV, Appellant.
Opinion
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Eileen Koretz, J.H.O.), rendered February 7, 2012. The judgment convicted defendant, after a nonjury trial, of attempted petit larceny. The appeal brings up for review the denial, after a hearing (Geraldine Pickett, J.), of the branch of defendant's omnibus motion seeking to suppress physical evidence.
ORDERED that the judgment of conviction is affirmed.
At a pretrial Mapp/Dunaway hearing (see Dunaway v. New York, 442 U.S. 200 [1979] ; Mapp v. Ohio, 367 U.S. 643 [1961] ), the arresting officer testified that, on July 11, 2010, he spoke to a member of a neighborhood civil patrol, who informed him that, at approximately 11:30 p.m., he had observed defendant on East 24th Street between Avenues R and S in Brooklyn enter a vehicle that was parked in a driveway. He believed that defendant took items from the front passenger area of the vehicle. After defendant exited the vehicle, members of the patrol followed defendant for about one-half block and stopped him at the corner of East 24th Street and Avenue R. A member of the patrol contacted the police. The arresting officer recovered a black automobile cell phone charger that was on the ground to the left of defendant, and an EZ Pass that was sticking out of defendant's left front pants pocket. The complainant arrived at the scene and identified the items recovered from defendant as his.
Defendant sought to suppress the cell phone charger and the EZ pass on the ground that the information a member of the patrol had provided to the police was insufficient to establish probable cause to arrest him. The Criminal Court disagreed, and, insofar as relevant to this appeal, denied the branch of defendant's omnibus motion seeking to suppress the items.
As an initial matter, defendant's contentions are preserved for appellate review, as the hearing court's decision clearly addressed the issue of whether the information imparted to the police established probable cause to arrest defendant (see People v. Smith, 22 NY3d 462, 465 [2013] ). We find that the hearing court correctly declined to suppress the cell phone charger and the EZ Pass.
Defendant failed to meet his burden of proving, by a preponderance of the evidence, that the police did not have probable cause to arrest him (see People v. Berrios, 28 N.Y.2d 361, 367–368 [1971] ; People v. Thomas, 291 A.D.2d 462, 463 [2002] ). The facts and circumstances of this case, as developed at the suppression hearing, viewed as a whole, would lead a reasonable person with the expertise of the arresting officer to conclude that an offense was or is being committed and that defendant committed or is committing it (see People v. Bigelow, 66 N.Y.2d 417, 423 [1985] ; People v. Wende, 122 AD3d 884 [2014] ; People v. Gray, 92 AD3d 892, 893 [2012] ; People v. Bradshaw, 76 AD3d 566, 570 [2010], affd 18 NY3d 257 [2011] ; People v. Wright, 8 AD3d 304, 306 [2004] ; People v. Brown, 256 A.D.2d 414, 415 [1998] ; People v. Gingras, 22 Misc.3d 22, 23 [App Term, 9th & 10th Jud Dists 2008] ). It was unnecessary for the People to establish the proof necessary for a conviction or a prima facie case. Rather, the evidence at the hearing established that it was more probable than not that an offense had occurred and that defendant had been the perpetrator (see People v. Wright, 8 AD3d at 307 ; People v. Attebery, 223 A.D.2d 714, 715 [1996] ).
The information the police received from the member of the patrol, an identified citizen, was sufficient to establish probable cause to arrest defendant pursuant to the two-part Aguilar–Spinelli test (see Spinelli v. United States, 393 U.S. 410 [1969] ; Aguilar v. Texas, 378 U.S. 108 [1964] ; People v. Ketcham, 93 N.Y.2d 416, 420 [1999] ; People v. Parris, 83 N.Y.2d 342, 345–347 [1994] ). The People established that the member of the patrol was reliable (see People v. Parris, 83 N.Y.2d at 350 ; People v. Hetrick, 80 N.Y.2d 344, 349 [1992] ; People v. Brito, 59 AD3d 1000 [2009] ; People v. Nunez, 55 AD3d 756, 757 [2008] ; People v. Richards, 32 AD3d 545, 547 [2006] ; People v. Nieves, 26 AD3d 519, 520 [2006] ; People v. Williams, 301 A.D.2d 543 [2003] ). The People also established that the information the member of the patrol had provided to the police was based on his personal observation of defendant's actions (see People v. Hetrick, 80 N.Y.2d at 348 ; People v. Oglesby, 121 AD3d 818, 819–820 [2014] ; People v. Johnson, 19 AD3d 1163, 1164 [2005] ; People v. Smalls, 271 A.D.2d 754, 754–755 [2000] ; People v. Weeks, 236 A.D.2d 432 [1997] ; cf. People v. Voner, 74 AD3d 1371, 1373 [2010] ). The information provided by the member of the patrol was of such quality, considering its source and the circumstances in which he had obtained the information, that a reasonable observer would be warranted in determining that the basis of his knowledge led logically to the conclusion that defendant had committed a crime (see People v. Beruvais, 231 A.D.2d 733, 734 [1996] ; People v. Greene, 153 A.D.2d 439, 444 [1990] ).
Defendant's remaining contention lacks merit.
Accordingly, the judgment of conviction is affirmed.
PESCE, P.J., SOLOMON and ELLIOT, JJ., concur.