People v. Malik

• Decision Date: 25 October 1999
• Citation: 697 N.Y.S.2d 156
• Parties: The PEOPLE, etc., respondent, v. Thomas MALIK, appellant.
• Court: New York Supreme Court — Appellate Division

Page 156

697 N.Y.S.2d 156

The PEOPLE, etc., respondent, v. Thomas MALIK, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 25, 1999.

Mark Diamond, New York, N.Y., for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie and Anne C. Feigus of counsel), for respondent.

DAVID S. RITTER, J.P., WILLIAM C. THOMPSON, SANDRA J. FEUERSTEIN and NANCY E. SMITH, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Egitto, J.), rendered December 17, 1996, convicting him of murder in the second degree (two counts), 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 the defendant to law enforcement officials.

ORDERED that the judgment is affirmed.

In an attempt to rob a subway token booth, the defendant and two other individuals set it on fire, killing the token clerk inside. The defendant's claim that the hearing court erred in denying that branch of his omnibus motion which was to suppress statements he made to the police because they were the fruit of an unlawful arrest and were involuntarily made is without merit. Contrary to the defendant's contentions, the police had probable cause to arrest him because one of his accomplices implicated him in the commission of the crime (see, People v. Walker, 228 A.D.2d 798, 800, 644 N.Y.S.2d 368; People v. Butler, 201 A.D.2d 662, 663, 608 N.Y.S.2d 263; People v. Pennix, 166 A.D.2d 729, 730, 561 N.Y.S.2d 480). Furthermore, a review of the totality of the circumstances (see, People v. Woods, 141 A.D.2d 588, 529 N.Y.S.2d 194), indicates that the defendant's statements were made voluntarily (see, People v. Tarsia, 50 N.Y.2d 1, 11, 427 N.Y.S.2d 944, 405 N.E.2d 188; People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179; People v. Sobchik, 228 A.D.2d 800, 802, 644 N.Y.S.2d 370; People v. Springer, 221 A.D.2d 386, 633 N.Y.S.2d 508; People v. Pennix, supra; People v. Benitez, 128 A.D.2d 628, 513 N.Y.S.2d 26; People v. Croney, 121 A.D.2d 558, 559, 503 N.Y.S.2d 608). Accordingly, the hearing court properly denied that branch of the defendant's omnibus motion.

The defendant's contention that the testimony of a jailhouse informant was improperly admitted at trial is without merit. The informant was not an agent for the police with respect to the testimony that was admitted (see, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; People v. Cardona, 41 N.Y.2d 333, 392 N.Y.S.2d 606, 360 N.E.2d 1306). Although the informant's testimony consisted of evidence of uncharged crimes, under the circumstances of this case, it was admissible because it was relevant to the defendant's consciousness of guilt (see, People v. Marin, 65 N.Y.2d 741, 746, 492 N.Y.S.2d 16, 481 N.E.2d 556; People v. Moses, 63 N.Y.2d 299, 308, 482 N.Y.S.2d 228, 472 N.E.2d 4; People v. Brown, 239 A.D.2d 429, 658 N.Y.S.2d 334; People v. Reyes, 162 A.D.2d 357, 556 N.Y.S.2d 916; People v. Warner, 126 A.D.2d 788, 790, 510 N.Y.S.2d 292).

The...