People v. Beruvais

• Decision Date: 30 September 1996
• Parties: The PEOPLE, etc., Respondent, v. Broucely BERUVAIS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 117

648 N.Y.S.2d 117

231 A.D.2d 733

The PEOPLE, etc., Respondent, v. Broucely BERUVAIS, Appellant.

Supreme Court, Appellate Division,

Second Department.

Sept. 30, 1996.

Daniel L. Greenberg, New York City (Alan S. Axelrod of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie and Monique Ferrell of counsel), for respondent.

Before BRACKEN, J.P., and ROSENBLATT, ALTMAN and LUCIANO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Barasch, J.), rendered June 29, 1994, convicting him of murder in the second degree and attempted murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

As part of his pretrial omnibus motion, the defense counsel moved, inter alia, to suppress the surviving victim's identification testimony. The victim observed the defendant in a lineup after the police arrested the defendant based upon an undisclosed informant's tip. The defense argues that the police lacked probable cause to arrest the defendant, that the identification should have been suppressed as the fruit of an illegal arrest, and that the judgment should be reversed and a new trial ordered. We agree.

Probable cause may be supplied, in whole or in part, through hearsay information (see, People v. Parris, 83 N.Y.2d 342, 345, 610 N.Y.S.2d 464, 632 N.E.2d 870; People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451; People v. Cruz, 191 A.D.2d 507, 508, 594 N.Y.S.2d 342). Under the Aguilar-Spinelli rule, "when probable cause is predicated in whole or in part upon the hearsay statement of an informant, it must be demonstrated that (1) the informant disclosed a sufficient basis for his or her knowledge, and (2) the informant was reliable" (People v. Jean-Charles, 226 A.D.2d 395, 640 N.Y.S.2d 266; see, People v. Parris, supra). In order to satisfy the "basis of knowledge" prong, it is not necessary that the informant have personally viewed the criminal activity (see, People v. Jean-Charles, supra; People v. Greene, 153 A.D.2d 439, 444, 552 N.Y.S.2d 640, cert. denied sub nom. Greene v. New York, 498 U.S. 947, 111 S.Ct. 363, 112 L.Ed.2d 326; United States v. Button, 653 F.2d 319, 324, n. 6; United States v. Spach, 518 F.2d 866; United States v. Romano, 482 F.2d 1183, cert. denied sub nom. Yassen v. United States, 414 U.S. 1129, 94 S.Ct. 866, 38 L.Ed.2d 753). " 'What is required is information of such quality, considering its source and the circumstances in which it came into possession of the informant, that a reasonable observer would be warranted in determining that the basis of the informant's knowledge was such that it led logically to the conclusion that a crime had been * * * committed' by the defendant" (People v. Reid, 184 A.D.2d 668, 669, 584 N.Y.S.2d 873, quoting People v. Greene, 153 A.D.2d 439, 444, 552 N.Y.S.2d 640; People v. Restrepo, 87 A.D.2d 320, 323-324, 451 N.Y.S.2d 144).

Absent an eyewitness account by the informant, "an informant's basis of knowledge may be verified by police investigation that corroborates the defendant's actions or that develops information consistent with detailed predictions by the informant" (People v. Bigelow, supra, 66 N.Y.2d at 423-424, 497 N.Y.S.2d 630, 488 N.E.2d 451). Where the information provided is derived solely from hearsay, and there is no indication of the source of the hearsay, it is not possible to determine the informant's basis of knowledge. Therefore, the evidence is insufficient to support a finding...