PEOPLE v. GERMAN

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

The PEOPLE of the State of New York, Respondent, v. Donte GERMAN, Appellant.

Decided: June 25, 1998

Before CARDONA, P.J., and CREW, WHITE, YESAWICH and GRAFFEO, JJ. Eugene P. Devine, Public Defender (Jeanne M. Heran, of counsel), Albany, for appellant. Sol Greenberg, District Attorney (Christopher D. Horn, of counsel), Albany, for respondent.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered July 19, 1996, upon a verdict convicting defendant of the crimes of burglary in the first degree and attempted armed robbery in the first degree.

In the early morning hours of September 6, 1995, Michael Sbuttoni, an Albany Police Department detective, responded to a call at 278 Second Street in the City of Albany.   Upon his arrival at the scene, Sbuttoni was advised by Elizabeth Judkins, a resident at the premises, that three armed men had forced their way into her apartment and demanded money.   Judkins stated that she recognized the voice of one of the men, whom she knew from prior association, as “Black God”.   Although the men's faces were covered, Judkins confirmed her identification of “Black God” when his scarf slipped down his face.   Sbuttoni proceeded to defendant's residence and after a consensual search of the living room1 and defendant's bedroom failed to uncover a weapon, Sbuttoni left the premises.   Shortly thereafter, Sbuttoni returned to defendant's residence and placed him under arrest based on an outstanding warrant.

Sbuttoni obtained a search warrant which authorized the search of defendant's residence for any clothing which was the same or similar as that alleged to have been worn by defendant, as well as any guns which may have been used during commission of the crime.   The search yielded black fatigue pants, a dark blue “hoodie” and a bluish green scarf with a paisley design.   County Court denied defendant's motion to suppress the physical evidence and, following a jury trial, defendant was convicted and sentenced to 8 1/3 to 25 years in prison for burglary and 5 to 15 years for attempted robbery, the terms of imprisonment to run concurrently.

 Defendant challenges County Court's denial of his motion to suppress the items seized pursuant to the search warrant.   To establish probable cause, a search warrant application must provide sufficient information “to support a reasonable belief that evidence of a crime may be found in a certain place” (People v. McCulloch, 226 A.D.2d 848, 849, 640 N.Y.S.2d 914, lv. denied 88 N.Y.2d 1070, 651 N.Y.S.2d 414, 674 N.E.2d 344).  Moreover, the court's determination that probable cause existed must be afforded great deference (see, People v. Markiewicz, 246 A.D.2d 914, 915, 667 N.Y.S.2d 836, 838, citing, United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684).   Here, the application for the search warrant was supported by the crime report filed by Judkins and her sworn statement, which included a positive identification of defendant and a description of the clothes he was wearing.   The application also contained Sbuttoni's statement that he had conducted a consensual search of defendant's bedroom in which clothes similar to Judkins' description were observed.   This information provided a substantial basis for the execution of the search warrant (see, People v. Augustine, 235 A.D.2d 915, 654 N.Y.S.2d 179, appeal dismissed 89 N.Y.2d 1072, 659 N.Y.S.2d 850, 681 N.E.2d 1297, lv. denied 89 N.Y.2d 1088, 660 N.Y.S.2d 381, 682 N.E.2d 982).   Defendant's contention that reversal is required since Paula Breen, a Lieutenant with the Albany Police Department, did not testify during the suppression hearing is without merit.   The record demonstrates that Breen's radio transmission merely corroborated certain information Sbuttoni received from other sources (cf., People v. Rodriguez, 52 N.Y.2d 483, 491-492, 438 N.Y.S.2d 754, 420 N.E.2d 946).   Since probable cause was established at the suppression hearing and the information received from Breen did not form the basis for the search warrant, it was unnecessary for her to testify (cf., People v. Parris, 83 N.Y.2d 342, 610 N.Y.S.2d 464, 632 N.E.2d 870;  People v. Petralia, 62 N.Y.2d 47, 476 N.Y.S.2d 56, 464 N.E.2d 424, cert. denied 469 U.S. 852, 105 S.Ct. 174, 83 L.Ed.2d 109;  People v. Walker, 244 A.D.2d 796, 665 N.Y.S.2d 720).

 We also reject defendant's contention that the search warrant contained an overbroad description of the property to be seized.   The search warrant was limited to firearms and articles of clothing described by Judkins in her statement which was attached to the warrant.   Further, although the warrant did not contain the apartment number of the residence, it accurately stated the street address and described the place to be searched as that “known to normally be occupied by [defendant] and his mother, Cynthia German”.   The officers carrying out the search were familiar with defendant's residence, having been there earlier that morning.   Therefore, the search warrant was sufficiently particularized to enable the police officers to identify the place intended to be searched and the items sought (see, People v. Wallace, 238 A.D.2d 807, 656 N.Y.S.2d 513, lvs. denied 90 N.Y.2d 865, 661 N.Y.S.2d 192, 683 N.E.2d 1066;  People v. Augustine, supra;  People v. Davenport, 231 A.D.2d 809, 647 N.Y.S.2d 306, lv. denied 89 N.Y.2d 921, 654 N.Y.S.2d 723, 677 N.E.2d 295).

 Defendant's claim that the prosecutor's comments during summation deprived defendant of a fair trial was not preserved for appellate review since defendant did not object at the time of the People's summation (see, CPL 470.05 [2];  People v. Nuccie, 57 N.Y.2d 818, 455 N.Y.S.2d 593, 441 N.E.2d 1111;  People v. Persons, 245 A.D.2d 845, 666 N.Y.S.2d 773;  People v. Dexheimer, 214 A.D.2d 898, 625 N.Y.S.2d 719, lv. denied 86 N.Y.2d 872, 635 N.Y.S.2d 954, 659 N.E.2d 777) and we decline to reverse on that ground as a matter of discretion in the interest of justice since the comments were not so egregious as to deprive defendant of a fair trial (see, CPL 470.15[6][a];  cf., People v. Goss, 229 A.D.2d 791, 646 N.Y.S.2d 397;  People v. Demming, 116 A.D.2d 886, 498 N.Y.S.2d 203, lv. denied 67 N.Y.2d 941, 502 N.Y.S.2d 1033, 494 N.E.2d 118).

 Lastly, the sentence imposed shall not be disturbed since it was within the statutory guidelines and the record is devoid of any indication that County Court abused its discretion (see, People v. MacDonald, 227 A.D.2d 672, 641 N.Y.S.2d 749, affd. 89 N.Y.2d 908, 653 N.Y.S.2d 267, 675 N.E.2d 1219;  People v. Morris, 220 A.D.2d 808, 632 N.Y.S.2d 231, lv. denied 87 N.Y.2d 976, 642 N.Y.S.2d 205, 664 N.E.2d 1268;  People v. Du Bray, 76 A.D.2d 976, 429 N.Y.S.2d 76).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   The consent was given by defendant's mother, who also confirmed that defendant was known by the name “Black God”.

GRAFFEO, Justice.

CARDONA, P.J., and CREW, WHITE and YESAWICH, JJ., concur.

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