Opinion
2012-02-16
The PEOPLE of the State of New York, Respondent, v. Antone LOVEJOY, Appellant.
Fernande Rossetti, Albany, for appellant. Gerald F. Mollen, District Attorney, Binghamton (Brian Leeds of counsel), for respondent.
Fernande Rossetti, Albany, for appellant. Gerald F. Mollen, District Attorney, Binghamton (Brian Leeds of counsel), for respondent.
Before: MERCURE, Acting P.J., ROSE, SPAIN, MALONE JR. and McCARTHY, JJ.
ROSE, J.
Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered August 13, 2009, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fifth degree.
Defendant was arrested in December 2007 for conducting an alleged drug transaction 13 days earlier in November 2007. At the time of his arrest, cocaine was discovered in his possession. He was then indicted for criminal possession of a controlled substance in the third degree in connection with the November drug transaction and criminal possession of a controlled substance in the fifth degree in connection with the December cocaine possession. When County Court denied defendant's motion to suppress the evidence against him, defendant pleaded guilty to the December charge. He chose, however, to go to trial on the November charge, and he was acquitted. He then sought to withdraw his plea to the December charge, but County Court denied the motion and imposed the agreed upon sentence.
On his appeal, defendant challenges the denial of his suppression motion, contending that the cocaine seized in December should have been suppressed because the police lacked probable cause to arrest him. We disagree. “Probable cause exists when an officer has knowledge of facts and circumstances ‘sufficient to support a reasonable belief that an offense has been or is being committed’ ” ( People v. Maldonado, 86 N.Y.2d 631, 635, 658 N.E.2d 1028 [1995], quoting People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985]; see People v. Parker, 84 A.D.3d 1508, 1509, 922 N.Y.S.2d 655 [2011] ). Here, police officers were performing surveillance on defendant's three-story, six-unit apartment building in November 2007. Defendant lived on the second floor and shared a rear porch with another apartment on his floor. A common stairwell connected the porch to both the ground level and to the third floor porch. An investigator, through binoculars, observed defendant engage in what he believed was a hand-to-hand drug transaction on the second floor porch. After defendant re-entered his apartment, a police canine climbed the stairwell to the second floor porch and indicated the presence of narcotics located there. The police seized the narcotics from the porch and identified defendant in his apartment, although they did not arrest him. Based upon their observations and seizure of narcotics, the police had a reasonable belief that defendant had committed a crime, giving them probable cause to arrest him 13 days later without a warrant when they encountered him on the street ( see CPL 140.10[1][b]; People v. Parker, 84 A.D.3d at 1509, 922 N.Y.S.2d 655; People v. Williams, 25 A.D.3d 927, 928–929, 807 N.Y.S.2d 470 [2006], lv. denied 6 N.Y.3d 840, 814 N.Y.S.2d 88, 847 N.E.2d 385 [2006]; People v. Bell, 5 A.D.3d 858, 859, 773 N.Y.S.2d 491 [2004] ). Also, County Court properly concluded that defendant did not have standing to challenge the search and seizure on the porch because it was a common area accessible to other tenants and their guests ( see People v. Rodriguez, 69 N.Y.2d 159, 163–164, 513 N.Y.S.2d 75, 505 N.E.2d 586 [1987]; People v. Wemette, 285 A.D.2d 729, 729–730, 728 N.Y.S.2d 805 [2001], lv. denied 97 N.Y.2d 689, 738 N.Y.S.2d 305, 764 N.E.2d 409 [2001]; People v. Muldrow, 273 A.D.2d 814, 815, 711 N.Y.S.2d 649 [2000], lv. denied 95 N.Y.2d 891, 715 N.Y.S.2d 384, 738 N.E.2d 788 [2000] ).
Finally, defendant contends that his plea of guilty was coerced because he was required to proceed on the December charge prior to the trial of the November charge. Again, we must disagree because the eventual acquittal on the November charge does not affect the existence of probable cause for the December arrest in light of the differing standards for probable cause and proof beyond a reasonable doubt ( see People v. Williams, 89 A.D.3d 1222, 1223–1224, 932 N.Y.S.2d 256 [2011]; People v. Lepard, 83 A.D.3d 1214, 1216, 922 N.Y.S.2d 585 [2011]; People v. Laltoo, 22 A.D.3d 230, 801 N.Y.S.2d 591 [2005] ). Moreover, the record reveals that County Court fully advised defendant of the consequences of his plea, defendant had the opportunity to discuss the matter with his attorney and he expressed to the court that he understood the repercussions and was voluntarily and unequivocally admitting to the commission of the crime. Under these circumstances, County Court properly concluded that defendant's plea was knowingly and voluntarily entered ( see People v. Smith, 89 A.D.3d 1328, 1328, 932 N.Y.S.2d 913 [2011]; People v. Moreno, 86 A.D.3d 863, 864, 927 N.Y.S.2d 487 [2011], lv. denied 17 N.Y.3d 954, 936 N.Y.S.2d 80, 959 N.E.2d 1029 [2011]; People v. Taylor, 82 A.D.3d 1291, 1292, 917 N.Y.S.2d 749 [2011], lv. denied 16 N.Y.3d 900, 926 N.Y.S.2d 35, 949 N.E.2d 983 [2011] ).
ORDERED that the judgment is affirmed.