People v. Perez

Judgment, Supreme Court, New York County (Stephen Crane, J.), rendered April 4, 1989, convicting defendant after a nonjury trial of attempted burglary in the second degree and possession of burglar’s tools, and sentencing him to an indeterminate term of imprisonment of two to four years and a concurrent one year jail term, respectively, unanimously affirmed.

Defendant’s motion to suppress physical evidence was properly denied. At approximately 3:00 a.m. on October 30, 1988, Susan Schiffman heard suspicious noises and voices at her neighbor’s apartment door. Knowing this neighbor was vacationing, and after calling his apartment and not receiving a response, she called the police. The arresting officer discovered defendant and an accomplice crouched behind a cardboard box in a stairway leading to the roof; the accomplice carried an axe.

Any possible innocent interpretation of the unfolding events disappeared when defendant and Sanchez attacked the officer. Clearly, defendant’s arrest was supported by probable cause. (People v McRay, 51 NY2d 594.) Concur — Sullivan, J. P., Milonas, Rosenberger, Asch and Smith, JJ.