PEOPLE v. TINORT

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

The PEOPLE of the State of New York, Respondent, v. Tornell TINORT, Defendant-Appellant.

Decided: May 18, 2000

ELLERIN, J.P., WALLACH, LERNER and SAXE, JJ. Donald J. Siewert, for Respondent. Angela Badamo, for Defendant-Appellant.

Judgment, Supreme Court, New York County (John Bradley, J.), rendered November 10, 1997, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fourth degree and attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4 to 8 years, unanimously affirmed.

 Defendant's suppression motion was properly denied.   There is no basis upon which to disturb the court's credibility determinations, which are supported by the record.   When the officer observed defendant in a drug-prone building where the owner had executed a “trespass affidavit” requesting police assistance in removing intruders, the officer, who had made several prior arrests in the building, had an “objective credible reason” to ask defendant whether he lived there, which constituted a level one request for information and not a commonlaw inquiry (see, People v. Hollman, 79 N.Y.2d 181, 191, 581 N.Y.S.2d 619, 590 N.E.2d 204; People v. Greene, 271 A.D.2d 235, 705 N.Y.S.2d 370).   When defendant claimed to have been visiting a friend, but claimed not to know the friend's name, and supplied an apartment number known by the officer to be non-existent, the officer had probable cause to arrest defendant for criminal trespass (see, People v. Magwood, 260 A.D.2d 246, 688 N.Y.S.2d 526, lv. denied 93 N.Y.2d 1004, 695 N.Y.S.2d 750, 717 N.E.2d 1087;  People v. Rodriguez, 159 A.D.2d 201, 552 N.Y.S.2d 13, lv. denied 76 N.Y.2d 742, 558 N.Y.S.2d 904, 557 N.E.2d 1200).   Probable cause to arrest for trespass did not require proof beyond a reasonable doubt of all the elements of that crime including scienter.

 We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.