People v. Attebery

Appeal by the defendant from a judgment of the County Court, Westchester County (Cowhey, J.), rendered October 29, 1993, convicting him of attempted burglary in the second degree and criminal [715] mischief in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony. Ordered that the judgment is affirmed. The defendant’s contention that there was no probable cause to support his arrest is without merit. Probable cause to arrest exists if the facts and circumstances known to the arresting officer would lead a reasonable person possessing the same expertise as the arresting officer to conclude that it is more probable than not that the suspect has committed or is committing a crime (see, People v Bigelow, 66 NY2d 417, 423; People v Brown, 173 AD2d 629). "The evidence of criminality need not rise to the level necessary to support a conviction or even be sufficient to establish a prima facie case * * * it need merely appear more probable than not that a crime has taken place and that the one arrested is its perpetrator” (People v Hill, 146 AD2d 823; see, People v Quarles, 187 AD2d 200). In this case, Mount Vernon Police Officer Dermid Corbalis was on uniformed patrol in a marked police car on the morning of November 18, 1992, when he received a radio transmission concerning two black males who were ringing doorbells in a certain specified neighborhood. The radio transmission also indicated that the two males had previously been in a certain car. Officer Corbalis saw a car fitting the description he received outside of 660 Hanover Place with a person in the driver’s seat. He then looked at the house and saw two black males crouched down by a basement window of the house at 660 Hanover Place. When Officer Corbalis drove by the house a second time, the car drove away and the two men fled. Officer Corbalis radioed a description of the two men who were arrested shortly thereafter by officers from the Pelham Police Department. Going from house to house ringing doorbells in a residential neighborhood at a time of day when many residents are away working, accompanied by a driver in a nearby vehicle, and fleeing at the sight of a uniformed officer before the officer had time to take any action, is a wéll-recognized standard operating procedure for burglars. Common sense, coupled with the totality of the circumstances, fully supports the conclusion that Officer Corbalis had reasonable grounds to believe that the defendant and his companion had trespassed upon the property located at 660 Hanover Place and had attempted to unlawfully enter the house through the basement window for the purpose of burglarizing it. [716] The defendant’s contention that the showup identification was unduly suggestive is without merit. "[A] showup procedure which is less than ideal may be acceptable in the interest of a prompt identification (People v Duuvon, 77 NY2d 541; People v Love, 57 NY2d 1023; People v Slade, 174 AD2d 639), and the record discloses that the showup was conducted in close spatial and temporal proximity to the offense and to the subsequent apprehension of the defendant” (People v Sanchez, 178 AD2d 567, 568). Therefore, the showup identification was not improper in this case. The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Balletta, J. P., O’Brien and Copertino, JJ., concur.