PEOPLE v. MOSS

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

The PEOPLE of the State of New York, Respondent, v. Clarence MOSS, Defendant–Appellant.

Decided: November 18, 2011

PRESENT:  SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.

 On appeal from a judgment convicting him upon a jury verdict of attempted burglary in the third degree (Penal Law §§ 110.00, 140.20) and possession of burglar's tools (§ 140.35), defendant contends that Supreme Court erred in refusing to suppress his statement to the police and the items discovered on his person.   We reject that contention.   The police officers had reasonable suspicion to stop and detain defendant “based on the totality of the circumstances, including ‘a radio transmission providing a general description of the perpetrator[ ] of [the] crime ․ [,] the ․ proximity of the defendant to the site of the crime, the brief period of time between the crime and the discovery of the defendant near the location of the crime, and the [officer's] observation of the defendant, who matched the radio-transmitted description’ ” (People v. Casillas, 289 A.D.2d 1063, 1064, 736 N.Y.S.2d 207, lv. denied 97 N.Y.2d 752, 742 N.Y.S.2d 612, 769 N.E.2d 358;  see People v. Clinkscales, 83 A.D.3d 1109, 919 N.Y.S.2d 533, lv. denied 17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94;  People v. Ramos, 74 A.D.3d 991, 992, 904 N.Y.S.2d 81, lv. denied 15 N.Y.3d 808, 908 N.Y.S.2d 168, 934 N.E.2d 902).   Even assuming, arguendo, that the 911 call to which the officers were responding was made by an anonymous caller, we conclude that the information provided by the caller was sufficiently corroborated to provide reasonable suspicion (see People v. Jeffery, 2 A.D.3d 1271, 769 N.Y.S.2d 675).   Indeed, the call was “based on the contemporaneous observation of conduct that was not concealed,” i.e., an African–American male breaking into a vacant house (id. at 1272, 769 N.Y.S.2d 675).   With respect to defendant's statement to the police that he was stealing cable, we conclude that the record of the suppression hearing “supports the court's determination that defendant spontaneously made that statement [inasmuch as] it was not the product of express questioning or its functional equivalent” (People v. Cheatom, 57 A.D.3d 1447, 1447, 871 N.Y.S.2d 529, lv. denied 12 N.Y.3d 782, 879 N.Y.S.2d 58, 906 N.E.2d 1092 [internal quotation marks omitted] ).   Thus, Miranda warnings were not required with respect to that statement.

 We reject defendant's further contention that the CPL 710.30 notice did not provide him with adequate notice of his oral statement that the People intended to introduce at trial.   According to the CPL 710.30 notice, defendant stated that he “was just going to steal some cable from the house․” At trial, a police officer testified that defendant stated that he “went into the house to steal cable.”   Defendant objected to that testimony and subsequently moved for a mistrial.  “[T]he People were not required to ‘give a verbatim report of the complete oral statement[s] in their CPL 710.30 notice’ ” (People v. Simpson, 35 A.D.3d 1182, 1182, 826 N.Y.S.2d 547, lv. denied 8 N.Y.3d 990, 838 N.Y.S.2d 494, 869 N.E.2d 670).

 Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction inasmuch as he failed to renew his motion for a trial order of dismissal after presenting evidence (see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61;  People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396;  People v. Woodard, 83 A.D.3d 1440, 1441, 919 N.Y.S.2d 718, lv. denied 17 N.Y.3d 803, 929 N.Y.S.2d 111, 952 N.E.2d 1106).   In any event, that contention is without merit (see People v. Gaines, 26 A.D.3d 742, 808 N.Y.S.2d 520, lv. denied 6 N.Y.3d 847, 816 N.Y.S.2d 753, 849 N.E.2d 976;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Finally, “[i]n light of defendant's lengthy criminal history, the sentence is [not] unduly harsh [or] severe” (People v. Spiers, 300 A.D.2d 1033, 1034, 751 N.Y.S.2d 906, lv. denied 99 N.Y.2d 620, 757 N.Y.S.2d 831, 787 N.E.2d 1177).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: