PEOPLE v. CAPONIGRO

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The PEOPLE of the State of New York, Respondent, v. Anthony CAPONIGRO, Defendant-Appellant.

Decided: September 28, 2010

GONZALEZ, P.J., ANDRIAS, ACOSTA, RENWICK, ABDUS-SALAAM, JJ. Steven R. Kartagener, New York, for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Mary C. Farrington of counsel), for respondent.

Judgment, Supreme Court, New York County (Budd G. Goodman, J. at suppression hearing; Bonnie G. Wittner, J. at jury trial and sentence), rendered February 28, 2006, convicting defendant of attempted assault in the first degree and criminal possession of a weapon in the second and third degrees, and sentencing him to an aggregate term of 6 years, unanimously affirmed.

The court properly denied defendant's suppression motion. At the scene of a shooting, the police spoke with bystanders who said the assailant drove away and provided a detailed description of the car. Another officer heard this information over the radio and saw defendant stopped at a red light in a car that precisely matched the description, around the corner from the crime scene. The distinctiveness of the car, viewed in light of its close geographic and temporal proximity to the crime, made it very likely that it was the car involved in the shooting (see e.g. People v. Dearmas, 48 AD3d 1226, 1227 [2008], lv denied 10 NY3d 839 [2008] ). These factors, when combined with the violent nature of the crime and defendant's furtive and uncooperative behavior when the officer approached to make an inquiry, provided reasonable suspicion that defendant was involved in the shooting and posed a danger to the officer. Accordingly, the officer properly ordered defendant out of the car (see generally People v. Harrison, 57 N.Y.2d 470, 476 [1982] ). As defendant opened the car door, the officer saw a firearm on the floor and lawfully arrested defendant. Defendant did not preserve his challenge to the reliability of the information provided by the unidentified bystanders, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits (see People v. Appice, 1 AD3d 244 [2003], lv denied 1 NY3d 594 [2004] ).

Defendant's challenge to certain evidence elicited at trial is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal.