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The People of the State of Illinois v. Kurt Tomei

February 15, 2013


Appeal from the Circuit Court of Cook County. No. 09 MC 4011789 Honorable Gregory Robert Ginex, Judge Presiding.

The opinion of the court was delivered by: Justice R. Gordon

JUSTICE R. GORDON delivered the judgment of the court, with opinion. Presiding Justice Lampkin and Justice Reyes concurred in the judgment.


¶ 1 Following a bench trial, defendant Kurt Tomei was convicted of criminal trespass to real property and criminal damage to property. After hearing factors in aggravation and mitigation, defendant was sentenced to 30 days in the Cook County department of corrections with a 6-day credit for time considered served, 2 years' conditional discharge, plus statutory fines and fees. On this appeal, defendant argues the sufficiency of the evidence, claiming that the State failed to prove him guilty beyond a reasonable doubt because the sole eyewitness's identification of defendant as the offender was not reliable enough to support a conviction. For the following reasons, we affirm.


¶ 3 The trial court found defendant guilty of criminal trespass to real property and criminal damage to property. Both offenses resulted from a break-in at approximately 12:30 a.m. on December 19, 2009, at a Franklin Park business owned by Frank Calistro, the sole witness to the trespass and damage to the property. Nothing was claimed taken by Calistro. The State's evidence established that Franklin Park police pulled over defendant in a motor vehicle a few blocks from the business and Calistro identified him there as one of the two men he had observed on his property over a live surveillance video feed, similar to a closed-circuit television broadcast, in which Calistro was able to observe the crime as it was happening. The video feed was broadcast online and Calistro accessed it on his laptop computer, but the video system did not record what he observed. After Calistro identified defendant in a showup*fn1 identification at the scene, defendant was stopped in his motor vehicle, the police arrested defendant and then found an open bag of tools, which included bolt cutters, in the backseat of defendant's automobile.

¶ 4 I. Suppression Hearing

¶ 5 Prior to trial, defendant filed a motion to quash his arrest and suppress evidence, arguing that the traffic stop and arrest lacked probable cause. At the suppression hearing the trial court heard testimony from two witnesses: Franklin Park police officer Yracheta,*fn2 who responded to the burglary, and Officer Steven Ross, who pulled over defendant in his motor vehicle five blocks from the scene of the crime.

¶ 6 A. Officer Yracheta's Testimony

¶ 7 Officer Yracheta testified that at 1 a.m. on December 19, 2009, he received a radio dispatch concerning a burglary in progress at a nearby business on Fullerton Avenue in Franklin Park. Yrecheta was three blocks from the business when he received the call and it took him less than a minute to drive to the scene. On his way over, a radio dispatcher described the suspects as "two male whites, dark jacket and dark hats." Upon his arrival, Yracheta waited for a few minutes for the owner of the property, Frank Calistro, to arrive. The property was "basically a storage yard" surrounded by a fence with a number of trailers, trucks, and other construction equipment inside. Yracheta observed surveillance cameras on the property positioned between 6 and 10 feet above ground.

¶ 8 Once Calistro arrived at the scene, Calistro told Yracheta that motion sensors had gone off and that he had accessed a live video feed on his computer, observing "two male whites in black clothing, black hats" looking through trucks and trailers stored on the property. At the time, Calistro indicated that "he could pretty much clearly see who they were." Calistro told Yracheta that he had difficulty recording the video feed and Yrecheta did not observe the video feed nor did Calistro show the officer his laptop.

¶ 9 Yrecheta observed a white four-door vehicle driving down an alleyway that leads to the property while talking to Calistro. The vehicle was 30 feet away, with two white males, both "wearing black jackets and black hats." As the vehicle turned east onto Fullerton Avenue and passed within 10 feet of Yrecheta, he used his flashlight and observed defendant driving. He then radioed in a description of the vehicle, including its license plate number, and asked for any available officers to pull the vehicle over. There were overhead streetlights on Fullerton Avenue and Yracheta observed no other vehicles on the street at that time.

¶ 10 When Yracheta went to search the property with Calistro, he observed a hole cut into a chain-link fence, as well as a broken utility box and damaged trailers. After a few minutes searching the property, Yrecheta received a call that the white vehicle had been pulled over nearby. Both he and Calistro then drove to that scene in separate vehicles. When Yracheta arrived, he observed the two white male suspects standing in front of the white vehicle, with at least four other officers at the location. The defendant was one of the suspects and Calistro identified him in court, but Yracheta did not observe Calistro identify defendant at the location of the stop.

¶ 11 B. Officer Steven Ross's Testimony

¶ 12 Officer Steven Ross testified that on December 16, 2009, he was alone on patrol when he received a dispatch about a burglary at a nearby business. As he was driving to the business, he received another dispatch from Yracheta that the burglary suspects were in a white four-door sedan driving east on Fullerton Avenue. Seconds after receiving the call, Ross observed a white vehicle crossing the intersection of Oak Street heading east on Fullerton. He did not observe the vehicle breaking any traffic laws. The description of the vehicle and its license plates matched the description provided by Yracheta, so he then pulled the vehicle over and observed two white males, both wearing dark jackets and dark hats. He asked for and received identification from defendant, who was the driver, and identified defendant in court. Officer Ross asked both men why they were observed leaving the alley near Calistro's business and neither responded to his question.

¶ 13 Another Franklin Park policeman, Officer Glover,*fn3 had arrived at the scene of the stop and asked the suspects to exit the vehicle. Ross then received defendant's consent to search the vehicle and observed a black bag and box on the backseat. The bag was open and bolt cutters were found inside. In addition, the bag contained screwdrivers, hammers, and other tools. Defendant told the officers that he was a painter. The two suspects stood in front of the vehicle and were not handcuffed during the search, and the officers did not draw their weapons or touch either of the suspects. After the search, two more officers arrived, as well as Frank Calistro, who identified the suspects as the men he had observed through the video feed. Calistro stood several feet away from the suspects when he made the identifications and there were streetlights overhead, and the street was generally well lit. After Calistro's identification, the suspects were placed under arrest.

¶ 14 Defendant asked the trial court to quash the arrest on the ground that the police lacked the reasonable suspicion needed to support the initial Terry stop of defendant. After hearing the evidence and arguments, the trial court found that the officers had a reasonable, articulable suspicion to believe that the suspects were the same two men that Calistro had observed on the video feed, trespassing on his property. The trial court denied defendant's motion to quash the arrest and the evidence, finding that the initial stop was proper.

¶ 15 II. Trial

ΒΆ 16 At trial, the State called three witnesses: Stanley Stann, the owner of the property where the crime took place; Frank Calistro, the owner of the business that was broken into and the sole witness to the trespass and damage to property, and Franklin Park police officer ...

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