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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Michael RUBEN, Defendant-Appellant.

Decided: December 30, 1999

PRESENT:  DENMAN, P.J., GREEN, PIGOTT, JR., HURLBUTT and BALIO, JJ. Barbara S. Greathead, for Defendant-Appellant. Loretta S. Courtney, for Plaintiff-Respondent.

 County Court properly refused to suppress items of physical evidence seized by the police as the fruits of an illegal stop and arrest.   The flight of defendant and codefendant in response to the approach of a police officer, together with their temporal and geographic proximity to the scene of the burglary and their resemblance to the description of the burglars, supported the officer's reasonable suspicion that they had committed the burglary.   Thus, the warrantless stop was lawful (see, People v. Hicks, 68 N.Y.2d 234, 238, 508 N.Y.S.2d 163, 500 N.E.2d 861;  People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562).   After the patdown for weapons revealed a wad of jewelry, the officer reasonably detained defendant and codefendant while witnesses were transported to the scene of the stop (see, People v. Hicks, supra, at 242-243, 508 N.Y.S.2d 163, 500 N.E.2d 861).   The victim of the burglary identified the jewelry as items stolen from her townhouse, and an investigating police lieutenant identified defendant's footprints as matching footprints leading to other items stolen in the burglary.   Defendant's warrantless arrest following those identifications was supported by “reasonable cause to believe” that defendant had committed a crime (CPL 140.10[1][b] ).

 The court erred in denying defendant's motion to suppress statements made without the benefit of Miranda warnings in response to police questioning.   That questioning preceded the arrest but followed the stop of defendant and codefendant and the discovery of the jewelry.   At that point, a reasonable person in defendant's position would have considered himself to be in custody (see, People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, rearg. denied 26 N.Y.2d 883, 309 N.Y.S.2d 1032, 258 N.E.2d 223, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89), and thus the police interrogation should have been preceded by Miranda warnings.   Reversal is not required, however, because the evidence of guilt is overwhelming and there is no reasonable possibility that the error contributed to the conviction (see, People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).

 The evidence, viewed in the light most favorable to the People (see, People v. Thompson, 72 N.Y.2d 410, 413, 534 N.Y.S.2d 132, 530 N.E.2d 839, rearg. denied 73 N.Y.2d 870, 537 N.Y.S.2d 489, 534 N.E.2d 327), is legally sufficient to support the conviction (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The verdict is not contrary to the weight of the evidence (see, People v. Bleakley, supra, at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Judgment unanimously affirmed.


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