People v Samuel Atwater

People v Atwater 2004 NY Slip Op 08819 [12 AD3d 333] November 30, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

The People of the State of New York, Respondent,
v
Samuel Atwater, Also Known as John Goodman, Appellant.

—[*1]

Judgment, Supreme Court, New York County (Herbert I. Altman, J., at hearing; Renee A. White, J., at plea and sentence), rendered August 12, 2003, convicting defendant of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to a term of 1½ to 3 years, unanimously 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 court correctly concluded that the recovery of a stolen credit card was attenuated from any unlawful police conduct. Defendant's independent act of discarding the stolen property evinced a purposeful divestment of possession and an intentional relinquishment of any privacy interest in it (see People v Ramirez-Portoreal, 88 NY2d 99, 110 [1996]). The court properly applied the particular attenuation test for abandonment situations set forth in People v Boodle (47 NY2d 398 [1979]). The record, including defendant's own testimony at the hearing, establishes that defendant's abandonment of the stolen card was a strategic, calculated decision and not a spontaneous reaction to the police activity found by the court to be illegal. Concur—Nardelli, J.P., Mazzarelli, Saxe, Friedman and Catterson, JJ.