PEOPLE v. WESLEY (2019)

Judgment, Supreme Court, New York County (Melissa C. Jackson, J. at suppression hearing;  Robert M. Stolz, J. at jury trial and sentencing), rendered April 6, 2016, convicting defendant of criminal possession of a weapon in the third degree, petit larceny and criminal possession of stolen property in the fifth degree, and sentencing her, as a second felony offender, to an aggregate term of 21/212 to 5 years, unanimously affirmed.

The court properly denied defendant's suppression motion.  An officer saw defendant engage in a pattern of conduct, including concealing store merchandise in her purse and bag, that clearly indicated that she was shoplifting.  The officer did not see defendant move toward the back of the store where the registers were located, and defendant's pattern of behavior rendered it highly unlikely that she paid for the merchandise during a brief period that the officer lost sight of her.  Accordingly, the officer had probable cause to arrest defendant as she left the store.  “[P]robable cause does not require proof beyond a reasonable doubt or the exclusion of every reasonable innocent explanation (People v. Lewis, 50 A.D.3d 595, 595, 857 N.Y.S.2d 88 [1st Dept. 2008], lv denied 11 N.Y.3d 790, 866 N.Y.S.2d 616, 896 N.E.2d 102 [2008] ).

Furthermore, defendant lacked standing to seek suppression of a knife found in a police transport van.  The evidence supports the inference that she purposefully discarded it while riding in the van (see e. g. People v. Febo, 167 A.D.3d 451, 89 N.Y.S.3d 152 [1st Dept. 2018], lv denied 33 N.Y.3d 948, 100 N.Y.S.3d 197, 123 N.E.3d 856 [2019] ).

Defendant did not preserve her claim that the trial court should have delivered a circumstantial evidence charge, and we decline to review it in the interest of justice.  As an alternative holding, we find that the circumstantial evidence that defendant possessed the knife found in the police van was overwhelming and there was no reasonable possibility that the absence of a circumstantial evidence charge caused any prejudice (see People v. Brian, 84 N.Y.2d 887, 889, 620 N.Y.S.2d 789, 644 N.E.2d 1345 [1994] ).