People v Rosario (Louis)

[*1] People v Rosario (Louis) 2014 NY Slip Op 50276(U) Decided on February 28, 2014 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 28, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
12-123.

The People of the State of New York, Respondent, - -

against

Louis Rosario, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (James M. Burke, J.), rendered August 24, 2011, convicting him, upon a plea of guilty, of possession of stolen property in the fifth degree, and imposing sentence.

Per Curiam.

Judgment of conviction (James M. Burke, J.), rendered August 24, 2011, affirmed.

The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]). The nonthreatening, nonaccusatory police questioning of defendant following the eyewitness showup identification constituted a level-two common law inquiry, not a level-three seizure (see People v Loretta, 107 AD3d 541, 541 [2013]), and was justified by, at least, a founded suspicion of criminality (id.) The court was warranted in finding that defendant's subsequent consent to a search of his bag was voluntary, based on the totality of circumstances, including the absence of coercive police conduct (see People v Gonzalez, 39 NY2d 122, 128-130 [1976]; People v Ochoa, 263 AD2d 359, 359 [1999], lv denied 94 NY2d 865 [1999]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 28, 2014