People v. Nicholas

• Decision Date: 20 December 1993
• Citation: 605 N.Y.S.2d 344,199 A.D.2d 425
• Parties: The PEOPLE, etc., Respondent, v. Jason B. NICHOLAS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 344

605 N.Y.S.2d 344

199 A.D.2d 425

The PEOPLE, etc., Respondent, v. Jason B. NICHOLAS, Appellant.

Supreme Court, Appellate Division,

Second Department.

Dec. 20, 1993.

Feldman and Feldman, Hauppauge (Steven A. Feldman, of counsel), for appellant, and appellant pro se.

Carl A. Vergari, Dist. Atty., White Plains (John Charles Zuroski and Maryanne Luciano, of counsel), for respondent.

Before O'BRIEN, J.P., and COPERTINO, PIZZUTO and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Westchester County (Silverman, J.), rendered August 9, 1991, convicting him of manslaughter 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 physical evidence.

ORDERED that the judgment is affirmed.

The County Court properly denied the defendant's motion to suppress the physical evidence seized from his vehicle. The police had probable cause both to arrest the defendant and to believe that his vehicle contained evidence related to the crime for which he was arrested (see, People v. Langen, 60 N.Y.2d 170, 469 N.Y.S.2d 44, 456 N.E.2d 1167, cert. denied 465 U.S. 1028, 104 S.Ct. 1287, 79 L.Ed.2d 690; People v. Belton, 55 N.Y.2d 49, 447 N.Y.S.2d 873, 432 N.E.2d 745).

We find no merit to the defendant's contention that the testimony of a prosecution witness regarding his conversation with the defendant in a courthouse holding cell should have been suppressed. There was no evidence that the witness was deliberately "planted" in the defendant's presence by the prosecution (cf., People v. Brooks, 83 A.D.2d 349, 444 N.Y.S.2d 615). The witness provided the information on his own initiative and therefore cannot be considered an agent of the government (see, People v. Cardona, 41 N.Y.2d 333, 392 N.Y.S.2d 606, 360 N.E.2d 1306).

The County Court properly denied the defendant's request for an accomplice charge as to the three eyewitnesses, since there was no evidence to support the inference that either of the three was an accomplice (see, CPL 60.22; People v. Tucker, 72 N.Y.2d 849, 850, 532 N.Y.S.2d 91, 527 N.E.2d 1227; People v. Torres, 160 A.D.2d 746, 747, 553 N.Y.S.2d 473).

Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of...