PEOPLE v. QUINONES

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

The PEOPLE, etc., respondent, v. George QUINONES, appellant.

Decided: November 27, 2007

ROBERT W. SCHMIDT, J.P., REINALDO E. RIVERA, ANITA R. FLORIO, and RUTH C. BALKIN, JJ. Lynn W.L. Fahey, New York, N.Y. (William Kastin of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas S. Burka of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ingram, J.), rendered May 11, 2005, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of the defendant's omnibus motion to suppress physical evidence and statements made to law enforcement officials.

ORDERED that the judgment is affirmed.

 The hearing court properly denied the defendant's motion to suppress physical evidence and statements made to law enforcement officials because the police lawfully stopped and detained the defendant.   The police had a founded suspicion that criminal activity was afoot when they observed the defendant, who matched the general description of a robbery suspect in a radio call, in the stairwell of the building where the reported robbery occurred (see People v. Hollman, 79 N.Y.2d 181, 184-185, 581 N.Y.S.2d 619, 590 N.E.2d 204;  People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562).   The defendant's attempted flight, combined with the temporal proximity between the reported robbery and the officers' arrival on the scene, gave the police reasonable suspicion to detain the defendant (see People v. Woods, 98 N.Y.2d 627, 745 N.Y.S.2d 749, 772 N.E.2d 1107;  People v. Wilson, 5 A.D.3d 408, 773 N.Y.S.2d 95;  People v. Sergeant, 281 A.D.2d 438, 721 N.Y.S.2d 399;  People v. Blunt, 276 A.D.2d 495, 713 N.Y.S.2d 562).

 The defendant's contention that the search of his duffel bag without a warrant constituted an unreasonable search and seizure, was not raised at the suppression hearing, and thus, it is unpreserved for appellate review (see CPL 470.05[2] ) and, in any event, is without merit (see People v. Brown, 36 A.D.3d 931, 828 N.Y.S.2d 550).

Finally, the defendant's contention that his sentencing as a persistent felony offender violated his constitutional rights pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 is without merit (see People v. Rivera, 5 N.Y.3d 61, 800 N.Y.S.2d 51, 833 N.E.2d 194, cert. denied 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 473;  People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160;  People v. Hargroves, 27 A.D.3d 765, 815 N.Y.S.2d 605).

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