PEOPLE v. PENA

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

The PEOPLE of the State of New York, Respondent, v. Manuel PENA, Defendant-Appellant.

Decided: July 01, 1999

ROSENBERGER, J.P., WILLIAMS, MAZZARELLI, LERNER and BUCKLEY, JJ. Michael S. Morgan, for Respondent. Terence J. Sweeney, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Budd Goodman, J.) rendered November 9, 1995, convicting defendant, after a jury trial, of attempted burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 15 years to life, unanimously affirmed.

 Defendant's suppression motion was properly denied in all respects.   During the initial police encounter when defendant exited the building adjoining the crime scene, he was asked what he was doing in the building.   He then voluntarily accompanied the officers to the apartment that he claimed to have been visiting.   At no time was he physically restrained or told that he was under arrest.   These circumstances constituted, at most, a common-law inquiry (see, People v. Bora, 83 N.Y.2d 531, 611 N.Y.S.2d 796, 634 N.E.2d 168, People v. Alston, 189 A.D.2d 555, 592 N.Y.S.2d 19, lv. denied 81 N.Y.2d 881, 597 N.Y.S.2d 942, 613 N.E.2d 974).   There was ample foundation for such an inquiry, since defendant partially matched the description, radioed minutes earlier, of the perpetrator of a burglary in progress, and was the only person present.   When his explanation was brought into question by the absence of anyone in the apartment to which he brought the officers, defendant was properly detained for a prompt on-the-scene showup (see, People v. Hicks, 68 N.Y.2d 234, 508 N.Y.S.2d 163, 500 N.E.2d 861).  We do not find the showup to have been unduly suggestive (see, People v. Duuvon, 77 N.Y.2d 541, 569 N.Y.S.2d 346, 571 N.E.2d 654).

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   The circumstances of the attempted entry provided ample evidence of criminal intent (see, People v. Castillo, 47 N.Y.2d 270, 277-278, 417 N.Y.S.2d 915, 391 N.E.2d 997).

We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.