People v. Rivera

• Decision Date: 23 December 1994
• Citation: 620 N.Y.S.2d 652,210 A.D.2d 895
• Parties: PEOPLE of the State of New York, Respondent, v. Oscar RIVERA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 652

620 N.Y.S.2d 652

210 A.D.2d 895

PEOPLE of the State of New York, Respondent, v. Oscar RIVERA, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Dec. 23, 1994.

Edward J. Nowak, by James Eckert, Rochester, for appellant.

Howard R. Relin, by Robert Mastrocola, Rochester, for respondent.

Before GREEN, J.P., and WESLEY, CALLAHAN, DOERR and BOEHM, JJ.

MEMORANDUM:

County Court properly concluded that there was probable cause for defendant's arrest and did not err in denying defendant's motion to suppress physical evidence seized at the time of that arrest. We reject defendant's contention that the descriptive information that the Trooper relied upon to effect the arrest was hearsay information that failed to satisfy the requirements of the Aguilar- Spinelli test (see, Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723). It is readily inferable from the suppression hearing evidence that the clerks and customers in the store at the time of the robbery were the source of the Trooper's information; thus, the first prong of the test, the reliability of the informant, was satisfied (see, People v. Parris, 83 N.Y.2d 342, 349-350, 610 N.Y.S.2d 464, 632 N.E.2d 870). An identified citizen informant is presumed to be reliable (see, People v. Hetrick, 80 N.Y.2d 344, 349, 590 N.Y.S.2d 183, 604 N.E.2d 732; People v. Roberson, 186 A.D.2d 1014, 1015, 588 N.Y.S.2d 469, lv. denied 81 N.Y.2d 793, 594 N.Y.S.2d 740, 610 N.E.2d 413). Because the citizen informants were eyewitnesses, the second prong, their basis of knowledge, was also satisfied (see, People v. Roberson, supra). Therefore, when the Trooper entered the bar and observed defendant, who matched the description of the robber, he had probable cause to make the arrest (see, People v. Roberson, supra; People v. Acevedo, 181 A.D.2d 596, 581 N.Y.S.2d 334, lv. denied 79 N.Y.2d 1045, 584 N.Y.S.2d 1013, 596 N.E.2d 411; People v. Moczo, 174 A.D.2d 365, 570 N.Y.S.2d 572, lv. denied 78 N.Y.2d 1013, 575 N.Y.S.2d 821, 581 N.E.2d 1067).

The People concede that the showup identification, conducted more than two hours after the robbery and at a location some seven miles away from the scene of the robbery, was not timely, but contend that it was warranted by exigent circumstances. Having concluded that there was probable cause to arrest defendant, we further conclude that there were no exigent circumstances here that would justify the untimely showup. Under the circumstances of this case, an appropriately conducted lineup was required (see, People v. Johnson, 81 N.Y.2d 828, 595 N.Y.S.2d 385, 611 N.E.2d 286; People v. Walker, 198 A.D.2d 826, 827-828, 604 N.Y.S.2d 403).

The victims and any other eyewitnesses to the robbery may make an in-court identification of defendant if the People can demonstrate an independent basis for that identification (see, People v. Walker, supra, at 828, 604 N.Y.S.2d 403). Because the eyewitnesses did not testify at the Wade hearing, there is no evidence upon which this Court can base such a determination....