People v. Quarles

OPINION OF THE COURT Boehm, J. The principal issue raised in this appeal is whether defendant’s warrantless arrest on burglary charges was supported by probable cause. We conclude that it was. I At about 3:50 in the morning of November 28, 1990, a burglary in progress at 224 Wellington Avenue, Rochester, was reported to the Rochester Police Department. Officer Sung Chung was the first to reach the house and saw a blue jacket lying on a garbage can in the back yard. Officer Chung spoke to a resident of 224 Wellington Avenue, who told him that she had seen a black male, six feet tall and with a black jacket, in the yard and that she had heard banging on the windows. Officer Ronald Bryant arrived and observed an open basement window and open side and back doors at 218 Wellington Avenue and an open basement window at 224 Wellington Avenue. Officer Christine Ulgiati then arrived on the scene. Officers Chung and Bryant mentioned that a blue jacket had been found in the back yard and that 218 Wellington Avenue also had been burglarized. Officer Ulgiati went to the back yard of 224 Wellington Avenue, where she saw defendant, a black male, five feet, ten inches tall, 160 pounds and wearing a navy blue sweatshirt and blue jeans. Upon being discovered, he got up and ran. Officer Ulgiati directed him to stop but he jumped over a fence and fled. Officer Ulgiati gave chase but lost him. She returned to 224 Wellington Avenue and a few minutes later heard a woman inside the house shout, "he’s back, he’s back”. Officer Ulgiati looked into the back yard and observed defendant in [202] the act of grabbing the blue jacket from the garbage can. Defendant threw the jacket over his shoulder and ran out of the yard. Officer Ulgiati headed him off in the front yard, handcuffed him and patted him down for weapons. She found a remote control to a VCR, a yellow rubber glove and a red rag in the pouch of his sweatshirt. She placed those items back into the pouch and took defendant to her police vehicle, where she was joined by Officer Bryant. Both officers patted down the defendant and seized the items in defendant’s sweatshirt pouch, as well as a box cutter from his pocket. Thereafter, Philip Ndaba, the owner of 218 Wellington Avenue, identified the remote control device found on defendant as having been stolen from his house, and the occupant of 224 Wellington Avenue identified defendant as the person she saw attempting to burglarize her house. A CD player was found under the porch of 224 Wellington Avenue and a VCR in the rear yard of 212 Wellington Avenue. Both belonged to Mr. Ndaba. Defendant was indicted on one count each of burglary in the second degree, attempted burglary in the second degree and petit larceny. He moved to suppress the items seized from him as the fruits of an illegal arrest, arguing that he was arrested without probable cause when Officer Ulgiati stopped and handcuffed him in the yard of 224 Wellington Avenue. After a hearing, Supreme Court denied defendant’s motion. Defendant was convicted as charged after a nonjury trial and sentenced, as a second felony offender, to concurrent terms of incarceration, aggregating 7 Vi to 15 years. II Defendant’s primary contention on appeal is that his detention by Officer Ulgiati constituted an arrest and that, because there was no probable cause for the arrest, the items subsequently seized from him must be suppressed. The threshold question is whether defendant was arrested at the time of the initial detention. The test for determining when an arrest has occurred is "what a reasonable man, innocent of any crime, would have thought had he been in the defendant’s position” (People v Yukl, 25 NY2d 585, 589, cert denied 400 US 851; see also, People v Hicks, 68 NY2d 234, 240). Supreme Court found that defendant was not arrested until after he had been identified by the resident of 224 Wellington Avenue as the man she saw trying to break into [203] the house, and after the owner of 218 Wellington Avenue identified the remote control seized from defendant as his property. In our view, however, it is more consonant with the facts that defendant was arrested when he was handcuffed and placed in the police vehicle and the enumerated items were taken from his person. No reasonable person in defendant’s situation would have believed that he was free to leave and not under arrest. That being the case, the inquiry then turns to whether Officer Ulgiati had probable cause for defendant’s arrest. A police officer may arrest a person without a warrant for a crime when the officer has "reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise” (CPL 140.10 [1] [b]). Reasonable cause, more frequently referred to as probable cause, has no precise definition. In determining whether an arrest is supported by probable cause, it is necessary to bear in mind that "we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act” (Brinegar v United States, 338 US 160, 175, reh denied 338 US 839; see also, People v Carrasquillo, 54 NY2d 248, 254). Probable cause may be based upon the totality of knowledge possessed by a police officer from information received and events personally observed. The determination of probable cause "is to be made after considering all of the facts and circumstances together. Viewed singly, these may not be persuasive, yet when viewed together the puzzle may fit and probable cause found” (People v Bigelow, 66 NY2d 417, 423). Thus, police officers who went to a building pursuant to a radio message reporting the presence of prowlers, and who found defendant on the roof of a nearby building, had probable cause to believe that a felony had been or was about to be committed by defendant, and his arrest without a warrant was upheld (People v Molloy, 22 AD2d 814, affd 17 NY2d 431). From the totality of the undisputed circumstances here, and the reasonable inferences to be drawn therefrom, there was ample probable cause for Officer Ulgiati to arrest defendant (see, People v Simmons, 114 AD2d 476). Officer Ulgiati had a right to rely on her professional experience and judgment that defendant, who was found in the early morning hours in the back yard of one of the houses where a burglary in progress [204] had been reported, who fled and refused to stop when directed to do so, who returned to the back yard to pick up an item of clothing, which could be reasonably construed as an attempt to remove incriminating evidence of identification, whose return caused someone in one of the burglarized houses to shout, "he’s back, he’s back”, and who attempted to flee again, was "probably” involved with the burglaries. The sequence of events belied any reasonable possibility that defendant’s conduct at that time and place was equivocal, or equally as innocent as it was suspicious. There was the telling combination of fresh crimes, defendant’s proximity to them and his flight when discovered. All of the essential elements existed that justified the police officers’ detention, handcuffing and arrest of defendant. The level of suspicion justified the level of police activity (see, People v Chestnut, 51 NY2d 14, cert denied 449 US 1018; People v Acevedo, 102 AD2d 336). An arrest need not be supported by information and knowledge which excludes all possibility of innocence and points to defendant’s guilt beyond a reasonable doubt. What is required is that it is "at least more probable than not that a crime has taken place and that the one arrested is its perpetrator” (People v Carrasquillo, supra, at 254; see also, People v Bigelow, supra, at 423; People v McRay, 51 NY2d 594, 602; People v Brockington, 166 AD2d 881, 882, lv denied 77 NY2d 836). Defendant’s flight from the scene, his furtive and evasive behavior, was an additional basis upon which to establish probable cause. "Such evidence, suggesting consciousness of guilt, has traditionally been considered some proof of a crime [citations omitted]” (People v McRay, supra, at 604; see also, People v Grimsley, 156 AD2d 714, lv denied 75 NY2d 919; People v Medina, 107 AD2d 302). The concurrence of the crimes, defendant’s proximity to them and his flight when discovered, gave rise to "reasonable cause to believe that [defendant had] committed such crime[s]” (CPL 140.10 [1] [b]; see also, People v Hollman, 79 NY2d 181, 185; People v Johnson, 66 NY2d 398, 402; People v De Bour, 40 NY2d 210, 223). III Defendant also contends that he was deprived of a fair trial because the trial court allowed a witness to testify that a glove print lifted from the VCR taken from 218 Wellington Avenue was consistent with an impression taken from the [205] rubber glove taken from defendant’s person. There is no merit to that contention. Even assuming that the trial court should not have allowed the challenged testimony after determining that the witness was not an expert, any error was harmless. The evidence against defendant was overwhelming. There is no possibility that the challenged testimony tainted the determination of guilt reached by the trial court. Moreover, we may presume that the trial court properly "considered only the competent evidence in reaching [its] determination” (People v Bishop, 111 AD2d 398, lv denied 67 NY2d 649; see, People v Moreno, 70 NY2d 403, 406; People v Brown, 24 NY2d 168, 172; People v Mann, 172 AD2d 1010, 1010-1011, lv denied 78 NY2d 969). IV Accordingly, the judgment of conviction should be affirmed.