People v. Duke

• Decision Date: 30 April 1990
• Citation: 160 A.D.2d 1017,554 N.Y.S.2d 729
• Parties: The PEOPLE, etc., Respondent. v. Victor DUKE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 729

554 N.Y.S.2d 729

160 A.D.2d 1017

The PEOPLE, etc., Respondent. v. Victor DUKE, Appellant.

Supreme Court, Appellate Division Second Department.

April 30, 1990.

Gutman & Gutman, Mineola (Elizabeth A. Gutman, of counsel), for appellant.

Denis Dillon, Dist. Atty. (George Freed and John F. McGlynn, Mineola, of counsel), for respondent.

Before THOMPSON, J.P., and BROWN, KUNZEMAN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Nassau County (Goodman, J.), rendered February 5, 1987, convicting him of murder in the second degree, robbery in the first degree and conspiracy in the fourth 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 statements made by him to law enforcement officials.

ORDERED that the judgment is affirmed.

On appeal the defendant claims error, inter alia, with respect to the court's refusal to suppress inculpatory statements made by the defendant to law enforcement officials. We disagree.

It is well settled that "the existence of probable cause to arrest requires * * * 'merely information which would lead a reasonable person who possesses the same expertise as the [arresting] officer to conclude, under the circumstances, that a crime is being or was committed' " (People v. Ortiz, 103 A.D.2d 303, 305, 479 N.Y.S.2d 548, affd 64 N.Y.2d 997, 489 N.Y.S.2d 46, 478 N.E.2d 187, quoting People v. McRay, 51 N.Y.2d 594, 602, 435 N.Y.S.2d 679, 416 N.E.2d 1015). Furthermore, in order for a person to be arrested it must appear "more probable than not" that he was the perpetrator of the crime (People v. Carrasquillo, 54 N.Y.2d 248, 254, 445 N.Y.S.2d 97, 429 N.E.2d 775; People v. Davis, 144 A.D.2d 379, 380, 533 N.Y.S.2d 965). Here, an eyewitness, who had known the defendant for several years by his sobriquet "Pancho", informed the investigating officers that she had seen a struggle between the defendant and the deceased, who was a gas station attendant, and that in the course of the struggle, the defendant shot the deceased. In addition, the defendant's brother-in-law told the officers that the defendant had related to him how he had shot the deceased and a guard dog which had "tried to rough him up." The brother-in-law also told the officers that, on the night of the incident, the defendant came home with a gun which had "an odor of firecrackers". Therefore, based on the information available to the arresting officers, there was probable cause for the defendant's arrest and the statements thereafter obtained were not suppressible as the product of an illegal arrest. Equally unavailing is the defendant's contention that the statements were involuntary because he was asked to, and did, make statements in the presence of his mother and police officers. The record shows that, prior to...