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

The PEOPLE of the State of New York, Respondent, v. Robert JONES, Defendant-Appellant.

Decided: February 25, 1999

SULLIVAN, J.P., NARDELLI, WALLACH and TOM, JJ. David M. Cohn, for Respondent. Cyrus Benson III, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Franklin Weissberg, J.), rendered February 27, 1996, convicting defendant, after a jury trial, of attempted murder in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 121/212 to 25 years, 71/212 to 15 years and 31/212 to 7 years, respectively, unanimously affirmed.

 The court properly denied defendant's motion to suppress various evidence as fruits of an allegedly unlawful seizure.   In a face-to-face encounter (see, People v. Castro, 115 A.D.2d 433, 497 N.Y.S.2d 1, lv. denied 68 N.Y.2d 850, 508 N.Y.S.2d 407, 501 N.E.2d 15;  see also, People v. Green, 35 N.Y.2d 193, 195-196, 360 N.Y.S.2d 243, 318 N.E.2d 464) with a sanitation worker, the arresting officer received information about a recent nearby shooting committed by two perpetrators who had just ran into a nearby subway station.   The officer immediately proceeded into the station and discovered defendant and another man who reasonably appeared to be accompanying him, both of whom matched the joint description received, and were the only persons in the station whose appearances were consistent with the description.   This provided reasonable suspicion for a stop and frisk (see, People v. Ellison, 222 A.D.2d 693, 636 N.Y.S.2d 348, lv. denied 87 N.Y.2d 1019, 644 N.Y.S.2d 152, 666 N.E.2d 1066).   The immediate flight of defendant's companion upon seeing the officer elevated the level of suspicion (see, Matter of Robert R., 231 A.D.2d 406, 647 N.Y.S.2d 199), and the forcible detention of defendant was warranted and did not constitute an arrest (People v. Allen, 73 N.Y.2d 378, 379, 540 N.Y.S.2d 971, 538 N.E.2d 323).

 The People established by clear and convincing evidence that there was an independent source for the in-court identification of defendant by an eyewitness whose showup identification had been suppressed as unduly suggestive (see, People v. Gutierrez, 235 A.D.2d 221, 652 N.Y.S.2d 270, lv. denied 89 N.Y.2d 1093, 660 N.Y.S.2d 387, 682 N.E.2d 988).   Even if admission of this in-court identification was erroneous, the error was harmless in light of the overwhelming evidence of guilt (see, People v. Orraca, 237 A.D.2d 148, 149, 655 N.Y.S.2d 7, lv. denied 90 N.Y.2d 861, 661 N.Y.S.2d 188, 683 N.E.2d 1062).

The People established a proper chain of custody for the bullet recovered from the victim during surgery (see, People v. Julian, 41 N.Y.2d 340, 392 N.Y.S.2d 610, 360 N.E.2d 1310).


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