People v. Burgos

198 A.D.3d 672

156 N.Y.S.3d 213

The PEOPLE, etc., respondent,

v.Luis BURGOS, appellant.

2015–09942

Ind. No. 2467/12

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 13, 2021

October 6, 2021

Leon H. Tracy, Jericho, NY, for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill, William H. Branigan, and Matthew C. Harnisch of counsel), for respondent.

MARK C. DILLON, J.P., ANGELA G. IANNACCI, LINDA CHRISTOPHER, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gene Lopez, J.), rendered September 11, 2015, convicting him of robbery in the second degree (three counts), and robbery in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Steven W. Paynter, J.), after a hearing (Thomas Demakos, J.H.O.), of that branch of the defendant's omnibus motion which was to suppress his statement to law enforcement officials.

ORDERED that the judgment is affirmed.

The hearing court properly determined that the defendant was lawfully arrested upon probable cause. The police officer possessed probable cause to stop the defendant's car because she observed him commit a traffic infraction by rolling through a stop sign (see People v. Wright, 98 N.Y.2d 657, 746 N.Y.S.2d 273, 773 N.E.2d 1011 ; People v. Robinson, 97 N.Y.2d 341, 741 N.Y.S.2d 147, 767 N.E.2d 638 ; People v. Graham, 54 A.D.3d 1056, 1057, 1058, 865 N.Y.S.2d 259 ). The officer had a right to request the defendant's driver license, registration, and insurance card (see People v. Robinson, 97 N.Y.2d at 351, 741 N.Y.S.2d 147, 767 N.E.2d 638 ; People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; People v. Graham, 54 A.D.3d at 1058, 865 N.Y.S.2d 259 ; Vehicle and Traffic Law §§ 312[1][b] ; 319[3]; 401[4]; 507[2]). When the defendant opened his glove compartment to retrieve the items requested, the officer was able to see a can of pepper spray in the glove compartment. The officer also noticed that the defendant's car matched the make, color, and partial license plate number of a car that was reportedly involved in robberies in the same area the previous evening in which one of the robbery victims was pepper sprayed in the eyes. Those observations established probable cause for the officer to arrest the defendant for criminal possession of a weapon in the fourth degree ( Penal Law § 265.01[2] ; see People v. Mojica, 171 A.D.2d 698, 567 N.Y.S.2d 165 ; People v. Jenkins, 133 A.D.2d 348, 349, 519 N.Y.S.2d 248 ). Furthermore, the court properly denied that branch of the defendant's omnibus motion which was to suppress his statement to law enforcement officials. As the officer possessed probable cause to arrest the defendant, his subsequent statement cannot be deemed "the fruit of the poisonous tree" ( Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 ) subject to the exclusionary rule. Moreover, the statement was voluntarily made after the defendant knowingly, voluntarily, and intelligently waived his Miranda rights ( Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ; see People v. O'Brien, 186 A.D.3d 1406, 1407, 130 N.Y.S.3d 494 ; People v. Figueroa, 6 A.D.3d 720, 722, 776 N.Y.S.2d 574 ; People v. Dayton, 66 A.D.3d 797, 798, 887 N.Y.S.2d 184 ).

The defendant only partially preserved for appellate review his challenge to the legal sufficiency of the evidence supporting his convictions (see CPL 470.05[2] ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord...