PEOPLE v. GREEN (2007)

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered July 9, 2004, convicting defendant, after a jury trial, of criminal possession of stolen property in the fourth degree (four counts) and petit larceny, and sentencing him, as a second felony offender, to an aggregate term of 2 to 4 years, unanimously affirmed.

 We initially held our determination of this appeal in abeyance and remanded the matter for a hearing (33 A.D.3d 452, 822 N.Y.S.2d 441) in accordance with People v. Mendoza, 82 N.Y.2d 415, 433-434, 604 N.Y.S.2d 922, 624 N.E.2d 1017 [1993].   As a result of the evidence adduced at that hearing, the court concluded that the security guard, an employee of Gap Incorporated who had observed defendant engage in shoplifting at one of Gap's Old Navy stores, was not an agent of the police.   The guard, acting in a private capacity, detained and searched defendant on his own initiative, and then called the police to come and arrest him.   Thus, defendant's detention did not amount to state action (see People v. Adler, 50 N.Y.2d 730, 737, 431 N.Y.S.2d 412, 409 N.E.2d 888 [1980], cert. denied 449 U.S. 1014, 101 S.Ct. 573, 66 L.Ed.2d 473 [1980];  People v. Gleeson, 36 N.Y.2d 462, 465-466, 369 N.Y.S.2d 113, 330 N.E.2d 72 [1975];  People v. Horman, 22 N.Y.2d 378, 292 N.Y.S.2d 874, 239 N.E.2d 625 [1968], cert. denied 393 U.S. 1057, 89 S.Ct. 698, 21 L.Ed.2d 699 [1969] ).

The hearing court's determination is supported by the record, and defendant's right to cross-examine the security guard was not violated and was properly limited to inquiries relevant to the proceeding (see Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 [1986];  People v. Corby, 6 N.Y.3d 231, 234-235, 811 N.Y.S.2d 613, 844 N.E.2d 1135 [2005];  People v. Jones, 289 A.D.2d 47, 48, 734 N.Y.S.2d 125 [2001], lv. denied 97 N.Y.2d 756, 742 N.Y.S.2d 616, 769 N.E.2d 362 [2002];  People v. Melcherts, 225 A.D.2d 357, 639 N.Y.S.2d 19 [1996], lv. denied 88 N.Y.2d 881, 645 N.Y.S.2d 456, 668 N.E.2d 427 [1996] ).   Consequently, denial of defendant's motion to suppress evidence seized by the security guard and turned over to the police is mandated, including the evidence from the resulting police investigation of the usage of defendant's Metrocard in connection with his commission of an uncharged robbery on the same day as his shoplifting arrest (see People v. Bialostok, 80 N.Y.2d 738, 744, 594 N.Y.S.2d 701, 610 N.E.2d 374 [1993] [“no ․ expectation of privacy could attach to information so knowingly and routinely turned over to a third party”];  People v. Di Raffaele, 55 N.Y.2d 234, 242, 448 N.Y.S.2d 448, 433 N.E.2d 513 [1982] ).

 To the extent the trial court may have abused its discretion in admitting testimony regarding the uncharged robbery, such error was harmless, in view of the fact that evidence of defendant's guilt was overwhelming and there was no likelihood that the jury would have acquitted had the testimony been omitted (see People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).   Finally, the arresting officer's testimony as to defendant's admission of ownership of the Metrocard, without prior notice and after the People had represented that they did not intend to offer any such statement, was also harmless error, given the overwhelming evidence of guilt and the trial court's curative and general instruction to the jury (id.).