People v. NabiPeople v. Nabi
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Leslie Leach, J.), rendered April 2, 2015, convicting him of burglary in the second degree, conspiracy in the fourth degree, possession of burglar‘s tools, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Steven Paynter, J.), after a hearing, of that branch of the defendant‘s omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is affirmed.
The defendant was convicted of burglary in the second degree, conspiracy in the fourth degree, possession of burglar‘s tools, and criminal possession of stolen property in the fifth degree following a jury trial in the Supreme Court, Queens County. At trial, the prosecution presented evidence that the police had been monitoring a particular BMW vehicle via a global positioning system device (hereinafter GPS device), which had been installed pursuant to a court order, and that on the day in question, they tracked the BMW from Queens County into New Hyde Park in Nassau County. Officers conducting surveillance observed the two occupants of the car, the defendant and another person, engage in conduct consistent with burglarizing a home. After the BMW drove away, the officers went into the home, which showed signs of forced entry and appeared to have been ransacked. They relayed the apparent burglary to other officers who were monitoring the BMW by GPS. Those officers followed the BMW back to Queens and conducted a traffic stop, during which they observed items that appeared to be proceeds from the burglary and burglar‘s tools. The defendant and his accomplice were arrested, and items retrieved from the BMW were later identified as having been taken from the home in Nassau County. The defendant appeals from the judgment of conviction.
The Supreme Court held a hearing on that branch of the defendant‘s omnibus motion which was to suppress physical evidence taken from the BMW and his person because the GPS device was unlawfully installed on the BMW. At the conclusion of the hearing, the court issued a decision from the bench denying that branch of the omnibus motion, and then issued a written order denying that branch of the omnibus motion for the reasons stated on the record. The defendant
“Under our State Constitution and common law, a defendant has the right to be tried in the county where the crime was committed unless the Legislature has provided otherwise” (People v Greenberg, 89 NY2d 553, 555;
Contrary to the defendant‘s preserved contention, the People met their burden of establishing, by a preponderance of the evidence, that Queens County was a proper venue for the prosecution of the burglary in the second degree and conspiracy in the fourth degree counts of the indictment. Specifically, the People presented sufficient evidence from which the jury reasonably could infer that the defendant and his accomplice entered into a conspiracy in Queens County to commit a burglary in Nassau County, and that certain acts the defendant and his accomplice committed were taken in Queens County in furtherance of the conspiracy to commit the burglary (cf. People v Douglass, 115 AD3d 1055, 1056-1057; People v Popal, 62 AD3d 912, 913; People v Kellerman, 102 AD2d 629, 631).
The defendant‘s challenge to the admission of certain testimony is partially unpreserved for appellate review (
Finally, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80). Contrary to the defendant‘s contention, the sentencing court relied upon the appropriate factors in sentencing him to a higher sentence than that offered during plea negotiations (see People v Prince, 128 AD3d 987, 988; People v Thompson, 125 AD3d 899, 900).
DILLON, J.P., ROMAN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court