People v Julio Rosario

People v Rosario 2005 NY Slip Op 09432 [24 AD3d 199] December 8, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

The People of the State of New York, Respondent,
v
Julio Rosario, Appellant.

—[*1]

Judgment, Supreme Court, New York County (William A. Wetzel, J., at hearing; Lewis Bart Stone, J., at trial, plea and sentence), rendered December 10, 2002, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and also convicting him, upon his plea of guilty, of attempted assault in the first degree, and sentencing him, as a second felony offender, to concurrent terms of 3½ to 7 years and five years, respectively, unanimously affirmed.

Defendant was convicted after trial and by guilty plea of separate counts of the same indictment. Since the record establishes a valid waiver of the right to appeal only with respect to the plea, but not as to the conviction after trial, we reach the merits of defendant's suppression claim.

The court properly denied defendant's suppression motion. Defendant was not arrested solely because of a description; rather, he was arrested because the victim pointed him out to the police who pursued and arrested him (see e.g. People v Rogers, 245 AD2d 395 [1997], lv denied 91 NY2d 1012 [1998]). Although the police briefly lost sight of defendant, they immediately saw him again under circumstances providing no reason to doubt that he was the same person they had just been chasing. Concur—Tom, J.P., Friedman, Nardelli, Sweeny and Malone, JJ.