Opinion
2009-216 K CR.
Decided on December 15, 2010.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Michael Gerstein, J.), rendered December 11, 2008. The judgment convicted defendant, after a nonjury trial, of attempted criminal mischief in the fourth degree, attempted unauthorized use of a vehicle in the third degree, attempted auto stripping in the third degree, and attempted criminal possession of stolen property in the fifth degree. The appeal brings up for review the denial, after a hearing, of defendant's motion to suppress physical evidence.
ORDERED that the judgment of conviction is affirmed.
PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ.
The charges in this case arose from an incident in which a police officer allegedly observed defendant in the process of stripping a stolen car. After a suppression hearing and a nonjury trial, defendant was convicted of attempted criminal mischief in the fourth degree (Penal Law §§ 110.00, 145.00), attempted unauthorized use of a vehicle in the third degree (Penal Law §§ 110.00, 165.05), attempted auto stripping in the third degree (Penal Law §§ 110.00, 165.09), and attempted criminal possession of stolen property in the fifth degree (Penal Law §§ 110.00, 165.40).
At the suppression hearing, the police officer testified that he saw defendant "working underneath" a Mercedes Benz automobile. According to the officer's testimony and photographs introduced into evidence at the hearing by the prosecution, the car was partially jacked up on a hydraulic jack, and a tire iron and/or jack handle lay on the ground near the car. The exterior of the car was generally in excellent condition, but all four tires had been removed and a strip of metal molding was leaning against the side of the car. One door was open, with a piece of metal piping jammed underneath it, and the inside panel of another door had been removed, exposing wiring. The muffler was dangling. The tires were nowhere in sight. The officer testified that, at one point, defendant walked to the corner and returned, and that, at another point, defendant entered the passenger compartment of the car and then went back underneath the car. The officer further testified that, after watching defendant for four or five minutes, he summoned other officers, who promptly arrived and arrested defendant. The officer also testified to the effect that he then recovered a pair of pliers and a box cutter from defendant's pocket. Additionally, the officer testified that he "call[ed] to run the license plate numbers" just before the arrest, and received a response after the arrest. It is not clear from the evidence at the suppression hearing whether the officer received this information before or after he recovered the tools from defendant's pocket. The suppression court credited the officer's testimony and denied suppression of the pliers and box cutter, finding that they had been recovered in the course of a search incident to a lawful arrest. Defendant argues on appeal, as he did in the suppression court, that his arrest was unlawful because probable cause was lacking.
We credit the officer's testimony, since the hearing court's determination that the officer was credible is not "clearly unsupported by the record" (People v Burnett , 74 AD3d 1222 , 1223 [internal quotation marks and citations omitted]). We find that there was probable cause to believe that the car had been stripped, either by defendant or by someone else, before the officer arrived on the scene. We also find that it "appear[ed] . . . more probable than not" ( People v Carrasquillo, 54 NY2d 248, 254) that defendant was, at the very least, attempting to continue the stripping process ( cf. People v Brown, 32 NY2d 172). Hence, we determine that probable cause for defendant's arrest existed ( see People v Carrasquillo, 54 NY2d at 254; People v Gingras , 22 Misc 3d 22 , 23 [App Term, 9th 10th Jud Dists 2008]; see also People v Shulman , 6 NY3d 1 , 25-26; People v Mercado, 68 NY2d 874, 877). The fact that the police officer did not receive a response to his inquiry about the license plate until after defendant was arrested does not change this result.
As the issue of probable cause is the sole issue raised by defendant on appeal, we affirm the judgment of conviction.
Pesce, P.J., Golia and Steinhardt, JJ., concur.