People v. McCloud

• Citation: 182 A.D.2d 835,583 N.Y.S.2d 15
• Parties: The PEOPLE, etc., Respondent, v. Kirtland McCLOUD, Appellant.
• Decision Date: 27 April 1992
• Court: New York Supreme Court — Appellate Division

Page 15

583 N.Y.S.2d 15

182 A.D.2d 835

The PEOPLE, etc., Respondent, v. Kirtland McCLOUD, Appellant.

Supreme Court, Appellate Division, Second Department.

April 27, 1992.

Edwin L. Butterfield, Williston Park, for appellant.

Appellant pro se.

Denis Dillon, Dist. Atty., Mineola (Bruce E. Whitney and George Freed, of counsel), for respondent.

Before BRACKEN, J.P., and O'BRIEN, RITTER and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant (1) from a judgment of the County Court, Nassau County (Doolittle, J.), rendered February 28, 1986, convicting him of murder in the second degree (three counts), robbery in the first degree (three counts), and burglary in the first degree (five counts), upon a jury verdict, and sentencing him to concurrent indeterminate terms of 25 years to life imprisonment on each of the convictions of murder in the second degree, indeterminate terms of 12 1/2 to 25 years imprisonment on each conviction of robbery in the first degree, to run concurrently to each other and consecutively to the sentence imposed on the conviction of murder in the second degree under the first count of the indictment, and terms of 12 1/2 to 25 years imprisonment on each conviction of burglary in the first degree, to run concurrently to each other and consecutively to the sentence imposed on the conviction of murder in the second degree under the first count of the indictment and consecutively to the sentence imposed on the conviction of robbery in the first degree imposed on the third count of the indictment, and (2), by permission, from an order of the same court (Harrington, J.), dated October 23, 1986, which denied his motion pursuant to CPL 440.10 to vacate the judgment of conviction. The appeal from the judgment brings up for review the denial, after a hearing (Santagata, J.), of those branches of the defendant's omnibus motion which were to suppress physical evidence and identification testimony.

ORDERED that the judgment is modified, on the law, by providing that the terms of imprisonment imposed on the convictions for burglary in the first degree shall run concurrently with the terms of imprisonment imposed on all of the convictions for robbery in the first degree; as so modified, the judgment is affirmed; and it is further,

ORDERED that the order is affirmed.

On the evening of February 8, 1985, the defendant and an accomplice entered a private home in Great Neck and robbed the owner and her guests at gunpoint. After collecting money and jewelry, they attempted to tie up the guests. At that point, the guests tried to overpower the intruders, and one guest was stabbed to death and two others were shot. Three days later, the defendant's accomplice made statements to the police inculpating the defendant. Shortly after obtaining this statement, the police arrested the defendant as he exited a car.

The defendant moved to suppress physical evidence recovered by the police following his arrest. At the suppression hearing, a police officer testified that he arrested the defendant without a warrant based on a radio transmission from one of the detectives involved in the investigation. On appeal, the defendant contends that the People failed to establish probable cause for his arrest since the arresting officer had no knowledge of his involvement in the crimes, and the detective who sent the radio transmission was not called as a witness at the suppression hearing. This issue is unpreserved for appellate review as the defendant did not raise the reliability of the information transmitted to the arresting officer as an issue at the hearing (see, People v. Weston, 56 N.Y.2d 844, 453 N.Y.S.2d 167, 438 N.E.2d 873; People v. Tyson, 160 A.D.2d 826, 554 N.Y.S.2d 621). A police officer is entitled to rely on the strength of a radio transmission from a fellow officer and to assume its reliability. Where the transmission furnishes probable cause, the sender's knowledge is imputed to the receiver, who then presumptively possesses probable cause to make the arrest. The presumption is only rebutted when the defendant makes a specific challenge to the knowledge of the sender (see, People v. Lypka, 36 N.Y.2d 210, 366 N.Y.S.2d 622, 326 N.E.2d 294). Here, since the defendant failed to challenge the reliability of the information conveyed to the arresting officer by the detective, the presumption of probable cause remained intact (see, People v. Jenkins, 47 N.Y.2d 722, 417 N.Y.S.2d 57, 390 N.E.2d 775; People v. Peters, 136 A.D.2d 750, 523 N.Y.S.2d 918). The People were under no duty to produce the detective to establish his knowledge of the defendant's participation in the crimes (see, People v. Williams, 117 A.D.2d 830, 499 N.Y.S.2d 152). In any event, the evidence adduced at the suppression hearing established that the police as a whole were in possession of information sufficient to establish probable cause for the defendant's arrest (see, People v. Peters, supra). Therefore, the branch of the defendant's omnibus motion which was to suppress physical evidence was properly denied.

The defendant contends that the court improperly discharged a juror who...