People v. Greene

Citation153 A.D.2d 439,552 N.Y.S.2d 640
PartiesThe PEOPLE, etc., Respondent, v. Thomas S. GREENE, Appellant.
Decision Date13 February 1990
CourtNew York Supreme Court Appellate Division

John F. Middlemiss, Jr., Ronkonkoma (Monroe A. Semble, of counsel), for appellant.

James M. Catterson, Jr., Dist. Atty., Riverhead (Steven A. Hovani, of counsel), for respondent.

Before BROWN, J.P., and LAWRENCE, EIBER and SULLIVAN, JJ.

LAWRENCE, Justice.

The defendant's conviction arose from charges based on the attempted rape and murder of a barmaid at the Crazy Clown Bar in Calverton. We have examined the defendant's claims that numerous errors deprived him of a fair trial. While reversal of the judgment is not required, the challenges to the admission of certain evidence at the trial warrant discussion.

I.

The defendant claims that the People did not prove that the police had probable cause to arrest him. Consequently, he contends that his oral statements to law enforcement officials concerning his commission of the murder, his signature on various photographs shown to him during his interrogation by the police, and the People's expert testimony that his palmprint matched a palmprint found on the leg of a broken chair found at the Crazy Clown Bar should not have been admitted at the trial since this evidence was the fruit of his illegal arrest.

At the hearing held on the defendant's suppression application, the testimony presented by the People established that on June 21, 1983, in the morning hours, the victim had been found brutally beaten to death inside the bar. Specifically, she had been "beaten severely about her upper torso * * * the bones in her hands were all broken * * * [h]er forearms were fractured". The body was "covered with blood from head to foot" and missing pieces of scalp and hair. In addition, several chairs had been knocked over and one chair had been broken with the legs detached, and two chair legs were missing. The missing chair legs were purportedly discovered "[a]pproximately two-tenths of a mile east of the Crazy Clown [Bar] off of Route 25 on the south side of the roadway".

Shortly after the incident, the police located two witnesses who were present at the bar on the night of the incident. A dancer at the bar recalled seeing and talking to a young man, later identified by her as the defendant, who had stated, in pertinent part, that he had just gotten out of the army, he lived "just up the road" and he had a brother. The dancer further stated that when she left the bar at about 3:05 A.M., there were three college-aged men in the bar but the defendant had left the bar just before she did and she saw him walking down the road, heading north. [At the hearing, the photographs admitted into evidence showed that the defendant lived to the east and slightly north of the Crazy Clown Bar]. A bar patron also stated that he had seen a young man, as well as 5 or 6 other people, in the bar that evening from about 2:30 A.M. until about 3:15 A.M., when he left. The bar patron did not see the young man leave the bar before he did. At the hearing, the bar patron was "80% sure" that the young man he had seen was the defendant.

No further leads to the identity of the murderer developed until April of 1985. At that time, a young woman contacted the police and told them that she had information implicating the defendant in the murder. Specifically she stated that she was a neighbor of the Greenes, and that the defendant had been in the service. She further recounted a conversation with Mark B., who had told her that the defendant's brother, Richard, had confided in him that the defendant had murdered the barmaid and had subsequently "flipped out" the afternoon following the murder. The police confirmed that the defendant had been admitted to Kings Park State Hospital on the afternoon of June 21, 1983.

At a subsequent meeting with the police, Mark B. told them that during the summer of 1983, he and his friend, Richard Greene, had been sitting in a car. While they were drinking vodka, they heard passersby talking about the Crazy Clown Bar murder. Richard then commented that he knew who had murdered the barmaid and, after Mark B. mentioned the defendant's name, Richard acknowledged that the murderer was his brother, the defendant. Richard then described what had occurred at the bar, stating that he had gone to the bar with the defendant and their cousin; after the cousin had left, the brothers remained until around closing time; the defendant became enraged after the barmaid refused to serve him; and when the defendant dragged the barmaid over and across the bar, Richard decided to leave the bar. In the early morning hours of the next day, Richard found the defendant in the front of their house. The defendant was "covered with blood, skin, meat and hair". When Mark B. commented on the description of the defendant's appearance, Richard replied, "Well, what did you expect? He beat her to death". Richard then stated that he proceeded to remove the defendant's clothes, secreted them in a hall closet and some time later he disposed of them in a cesspool. Richard further indicated that the defendant "flipped out" later that day and was admitted to a hospital. At the conclusion of the meeting, Mark B. provided the police with a sworn written statement memorializing his oral statement. According to the police, Mark B. further indicated that Richard had sworn him to secrecy. Without doing any further investigation, the police arrested the defendant.

The hearing court held that the evidence was sufficient to support a finding that there was probable cause to arrest the defendant, specifically noting that Mark B.'s statement was sufficient to meet the People's " 'burden of coming forward with evidence establishing probable cause' for the defendant's arrest" (People v. Greene, 137 Misc.2d 771, 778, 522 N.Y.S.2d 752).

The validity of the warrantless arrest in this case rests upon whether, at the time of the arrest, the officers' knowledge of the facts and circumstances was sufficient to establish reasonable cause to believe that the defendant had committed the murder (see, CPL 70.10[2], 140.10[1][b]; People v. Johnson, 66 N.Y.2d 398, 402, n. 2, 497 N.Y.S.2d 618, 488 N.E.2d 439; see also, McCray v. State of Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62, reh denied 386 U.S. 1042, 87 S.Ct. 1474, 18 L.Ed.2d 616). However, as noted by the hearing court, while the reasonable cause necessary for a warrantless arrest "may be supplied, in whole or in part, through hearsay information" (People v. Johnson, supra, 66 N.Y.2d at 402, 497 N.Y.S.2d 618, 488 N.E.2d 439; see, CPL 710.60[4], in this case, part of the information relied on by the police, Mark B.'s statement, "was not merely that given by an informant to a police officer, but that given by still another person to the informant, 'hearsay-upon hearsay' " (People v. Greene, supra, 137 Misc.2d at 777, 522 N.Y.S.2d 752). 1

Before there can be reliance based on hearsay, "it must appear, in the language of the Aguilar- Spinelli rules, that the informant has some basis of knowledge for the information he [has] transmitted to the police and that the information is reliable" (People v. Johnson, supra, 66 N.Y.2d at 402, 497 N.Y.S.2d 618, 488 N.E.2d 439). In this case, the reliability prong of the Aguilar- Spinelli rules was satisfied by the fact that Mark B., an identified citizen, gave a sworn statement to the police (see, People v. Johnson, supra, at 403, 497 N.Y.S.2d 618, 488 N.E.2d 439; People v. Hicks, 38 N.Y.2d 90, 378 N.Y.S.2d 660, 341 N.E.2d 227; see, also, People v. Wheatman, 29 N.Y.2d 337, 345-346, 327 N.Y.S.2d 643, 277 N.E.2d 662). At issue in this case is the basis of knowledge prong of the Aguilar- Spinelli rules. Initially, we note that there is no requirement that the information furnished by Mark B. had to be the product of his personal observations of criminal activity (see, United States v. Button, 8th Cir., 653 F.2d 319, 324, n. 6; United States v. Spach, 7th Cir., 518 F.2d 866; United States v. Romano, 5th Cir., 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; United States v. McCoy, 10th Cir., 478 F.2d 176, cert. denied, 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62; United States v. Fiorella, 2nd Cir., 468 F.2d 688, cert. denied 417 U.S. 917, 94 S.Ct. 2622, 41 L.Ed.2d 222, reh. denied 419 U.S. 885, 95 S.Ct. 156, 42 L.Ed.2d 128; United States v. Smith, 8th Cir., 462 F.2d 456; Waldrop v. State, 424 So.2d 1345 [Ala.Cr.App.]; State v. Alger, 100 Idaho 675, 603 P.2d 1009; Dawson v. State, 11 Md.App. 694, 701, n. 3, 276 A.2d 680, 683, n. 3; People v. Watson, 100 A.D.2d 452, 462, n. 6, 474 N.Y.S.2d 978; People v. Restrepo, 87 A.D.2d 320, 451 N.Y.S.2d 144; People v. Simon, 118 Misc.2d 745, 460 N.Y.S.2d 998, 107 A.D.2d 196, 486 N.Y.S.2d 118; Commonwealth v. Kaschik, 235 Pa.Super. 388, 344 A.2d 519). "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. Restrepo, supra, 87 A.D.2d at 323-324, 451 N.Y.S.2d 144; see, United States v. Smith, supra ). As noted by the Court of Appeals, "the basis of knowledge test is * * * intended to weed out, as not of sufficient quality, data received by the informant from others who have not themselves observed facts suggestive of criminal activity" ( People v. Elwell, 50 N.Y.2d 231, 237, 428 N.Y.S.2d 655, 406 N.E.2d 471). In this case, as found by the hearing court, Richard Greene's statements were based on his personal observations and conversation with the defendant, thereby satisfying the basis of knowledge prong of...

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