         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1172
KA 10-00082
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

CLARENCE MOSS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the   Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered January   7, 2010. The judgment convicted
defendant, upon a jury verdict, of   attempted burglary in the third
degree and possession of burglar’s   tools.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of attempted burglary in the third degree (Penal Law §§
110.00, 140.20) and possession of burglar’s tools (§ 140.35),
defendant contends that Supreme Court erred in refusing to suppress
his statement to the police and the items discovered on his person.
We reject that contention. The police officers had reasonable
suspicion to stop and detain defendant “based on the totality of the
circumstances, including ‘a radio transmission providing a general
description of the perpetrator[] of [the] crime . . .[,] the . . .
proximity of the defendant to the site of the crime, the brief period
of time between the crime and the discovery of the defendant near the
location of the crime, and the [officer’s] observation of the
defendant, who matched the radio-transmitted description’ ” (People v
Casillas, 289 AD2d 1063, 1064, lv denied 97 NY2d 752; see People v
Clinkscales, 83 AD3d 1109, lv denied 17 NY3d 815; People v Ramos, 74
AD3d 991, 992, lv denied 15 NY3d 808). Even assuming, arguendo, that
the 911 call to which the officers were responding was made by an
anonymous caller, we conclude that the information provided by the
caller was sufficiently corroborated to provide reasonable suspicion
(see People v Jeffery, 2 AD3d 1271). Indeed, the call was “based on
the contemporaneous observation of conduct that was not concealed,”
i.e., an African-American male breaking into a vacant house (id. at
1272). With respect to defendant’s statement to the police that he
was stealing cable, we conclude that the record of the suppression
                                 -2-                          1172
                                                         KA 10-00082

hearing “supports the court’s determination that defendant
spontaneously made that statement [inasmuch as] it was not the product
of express questioning or its functional equivalent” (People v
Cheatom, 57 AD3d 1447, 1447, lv denied 12 NY3d 782 [internal quotation
marks omitted]). Thus, Miranda warnings were not required with
respect to that statement.

     We reject defendant’s further contention that the CPL 710.30
notice did not provide him with adequate notice of his oral statement
that the People intended to introduce at trial. According to the CPL
710.30 notice, defendant stated that he “was just going to steal some
cable from the house . . . .” At trial, a police officer testified
that defendant stated that he “went into the house to steal cable.”
Defendant objected to that testimony and subsequently moved for a
mistrial. “[T]he People were not required to ‘give a verbatim report
of the complete oral statement[s] in their CPL 710.30 notice’ ”
(People v Simpson, 35 AD3d 1182, 1182, lv denied 8 NY3d 990).

     Defendant failed to preserve for our review his contention that
the evidence is legally insufficient to support the conviction
inasmuch as he failed to renew his motion for a trial order of
dismissal after presenting evidence (see People v Lane, 7 NY3d 888,
889; People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678; People
v Woodard, 83 AD3d 1440, 1441, lv denied 17 NY3d 803). In any event,
that contention is without merit (see People v Gaines, 26 AD3d 742, lv
denied 6 NY3d 847; see generally People v Bleakley, 69 NY2d 490, 495).
Viewing the evidence in light of the elements of the crimes as charged
to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude
that the verdict is not against the weight of the evidence (see
generally Bleakley, 69 NY2d at 495). Finally, “[i]n light of
defendant’s lengthy criminal history, the sentence is [not] unduly
harsh [or] severe” (People v Spiers, 300 AD2d 1033, 1034, lv denied 99
NY2d 620).




Entered:   November 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
