PEOPLE v. MARTINEZ (2005)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Blumenfeld, J.), rendered June 18, 2001, convicting him of burglary in the second degree (three counts), criminal possession of a weapon in the third degree, criminal possession of stolen property in the fourth degree (two counts), and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Braun, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

 The defendant's contention that no probable cause existed to support his arrest is without merit.   Probable cause to arrest exists if the circumstances known to the arresting officer would lead a reasonable person possessing the same expertise as the arresting officer to conclude that it is more probable than not that the suspect has committed or is committing a crime (see People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451;  People v. Brown, 173 A.D.2d 629, 570 N.Y.S.2d 214).   Here, the police had reasonable suspicion to stop and detain the defendant based upon a radio transmission and the fact that the defendant was observed in close proximity to the scene of the crime shortly after the crime occurred (see People v. Martinez, 301 A.D.2d 615, 753 N.Y.S.2d 851;  People v. Turner, 295 A.D.2d 545, 744 N.Y.S.2d 691), in addition to his furtive movements upon seeing the patrol car (see People v. Febus, 11 A.D.3d 554, 783 N.Y.S.2d 55, appeal dismissed 4 N.Y.3d 743, 790 N.Y.S.2d 656, 824 N.E.2d 57).   Upon being confronted by a police officer, the defendant admitted that the screw driver observed at his feet was his (see People v. Cordero, 140 A.D.2d 367, 527 N.Y.S.2d 853).   He was then identified by the police officer who had seen him at the scene of the crime (see People v. Parris, 83 N.Y.2d 342, 345-346, 610 N.Y.S.2d 464, 632 N.E.2d 870;  People v. Day, 8 A.D.3d 495, 496, 778 N.Y.S.2d 513;  People v. Moore, 296 A.D.2d 426, 745 N.Y.S.2d 542;  People v. Evans, 237 A.D.2d 458, 459, 655 N.Y.S.2d 76).

 Further, there is nothing in the record to support the defendant's contention that the testimony of the detective at the suppression hearing was incredible or patently tailored to nullify constitutional objections (see People v. Evans, 298 A.D.2d 401, 751 N.Y.S.2d 377).   Accordingly, the Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress physical evidence.

The defendant failed to preserve for appellate review his argument that the evidence was legally insufficient to establish three counts of burglary in the second degree beyond a reasonable doubt (see People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 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.

The defendant's remaining contentions raised in his supplemental pro se brief are without merit (see People v. Rushin, 172 A.D.2d 571, 568 N.Y.S.2d 338;  People v. Jackson, 134 A.D.2d 521, 521 N.Y.S.2d 294).