PEOPLE v. CANADY

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

The PEOPLE of the State of New York, Respondent, v. Jiya CANADY, Defendant-Appellant.

Decided: January 21, 1997

Before WALLACH, J.P., and NARDELLI, TOM, MAZZARELLI and ANDRIAS, JJ. Jennifer A. Daskevich, for Respondent. Judith Stern, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Robert Cohen, J.), rendered May 23, 1994, convicting defendant, after a jury trial, of murder in the second degree and burglary in the first degree, and sentencing him, as a juvenile offender, to concurrent terms of 9 years to life and 3 1/313 to 10 years, respectively, unanimously affirmed.

 The verdict was supported by legally sufficient evidence and was not against the weight of the evidence, which established, inter alia, that, as defendant stood guard with a sawed-off shotgun, the codefendant entered and remained in the area behind the counter of the grocery store where the cash register was located, an area that was not open to the public.   There is no requirement that such a nonpublic area be separately secured or occupied (Penal Law § 140.00[5] ).

 The evidence adduced at the suppression hearing established that the arresting officer had probable cause to arrest defendant and to search his clothing, wherein a spent shotgun shell was recovered.   The arresting officer saw the eyewitness point to and identify defendant and was informed by a fellow officer that the witness had positively identified defendant as being one of the perpetrators.   Moreover, under the circumstances, the eyewitness's pointing out of defendant, by itself, clearly signified that defendant was a participant in the crime.

Defendant's remaining contentions are without merit.

MEMORANDUM DECISION.