PEOPLE v. AGUILERA (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Alan D. Marrus, J.), rendered May 28, 2014, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.  The appeal brings for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

The defendant sought to suppress physical evidence recovered by the police after they entered an apartment, in which he was located, without a warrant.  Following a hearing, the Supreme Court declined to suppress the physical evidence.

Where a defendant moves to suppress evidence, “the People bear the burden of going forward to establish the legality of police conduct in the first instance” (People v. Hernandez, 40 A.D.3d 777, 778, 836 N.Y.S.2d 219;  see People v. Oden, 150 A.D.3d 1269, 1270, 53 N.Y.S.3d 545;  People v. Alvarado, 126 A.D.3d 803, 804, 5 N.Y.S.3d 271).  “The factual findings and credibility determinations of a hearing court are entitled to great deference on appeal, and will not be disturbed unless clearly unsupported by the record” (People v. Oden, 150 A.D.3d at 1270, 53 N.Y.S.3d 545 [internal quotation marks omitted];  see People v. Cartier, 149 A.D.2d 524, 524–525, 539 N.Y.S.2d 804).

Here, the Supreme Court properly concluded that the police conduct in entering the apartment was justified.  The evidence presented at the suppression hearing established that the police had probable cause to believe that robbery suspects were inside the apartment where the defendant was found, and exigent circumstances justified the police entry without a warrant (see Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637;  Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723;  People v. Ketcham, 93 N.Y.2d 416, 690 N.Y.S.2d 874, 712 N.E.2d 1238;  People v. Bigelow, 66 N.Y.2d 417, 497 N.Y.S.2d 630, 488 N.E.2d 451;  People v. Vargas, 143 A.D.2d 699, 532 N.Y.S.2d 921;  People v. Green, 103 A.D.2d 362, 480 N.Y.S.2d 220).  Contrary to the defendant's contention, the basis-of-knowledge prong of the Aguilar–Spinelli test was satisfied with respect to the information furnished by a female civilian present at the arrival of the police officers on the fourth floor, as there was sufficient circumstantial evidence from which it could reasonably be inferred that she reported what she had personally seen, rather than something she had been told (see People v. Ketcham, 93 N.Y.2d at 420, 690 N.Y.S.2d 874, 712 N.E.2d 1238).  In view of the evidence presented at the hearing, the Supreme Court properly denied suppression of the evidence seized from inside of the apartment (see People v. Desmarat, 38 A.D.3d 913, 915, 833 N.Y.S.2d 559;  People v. Green, 103 A.D.2d at 367, 480 N.Y.S.2d 220;  cf. People v. Sanders, 26 N.Y.3d 773, 47 N.E.3d 770).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

LEVENTHAL, J.P., AUSTIN, MALTESE and IANNACCI, JJ., concur.