People v. Rodriguez

• Decision Date: 14 December 1992
• Citation: 591 N.Y.S.2d 460,188 A.D.2d 564
• Parties: The PEOPLE, etc., Respondent, v. David RODRIGUEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 460

591 N.Y.S.2d 460

188 A.D.2d 564

The PEOPLE, etc., Respondent, v. David RODRIGUEZ, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 14, 1992.

Philip L. Weinstein, New York City (Kerry Elgarten, of counsel), for appellant.

Richard A. Brown, Dist. Atty., Kew Gardens (John Castellano and Emil Bricker, of counsel), for respondent.

Before SULLIVAN, J.P., and ROSENBLATT, MILLER and RITTER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Calabretta, J.), rendered May 25, 1988, convicting him of rape in the first degree, sodomy in the first degree (two counts), robbery in the first degree, and assault 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 identification testimony.

ORDERED that the judgment is affirmed.

There is no merit to the defendant's contention that the identification testimony implicating him in the sexual assault of the complainant should have been suppressed as the product of an illegal arrest. We note that in his omnibus motion the defendant failed to move for suppression of evidence based upon a claim that he had been arrested without probable cause (see, People v. Mezon, 80 N.Y.2d 155, 589 N.Y.S.2d 838, 603 N.E.2d 943). Rather, following a combined Wade-Huntley hearing, in his posthearing memorandum, the defendant advanced and developed the claim for the first time that he had been arrested without probable cause on October 12, 1986, in relation to other charges, and that a photograph taken following that arrest and release led to his identification and arrest on October 14, 1986, in connection with the instant charges. Insofar as this argument was not raised at a time when the People had an evidentiary opportunity to counter the defendant's bald assertions, it is unpreserved for appellate review (CPL 470.05[2]; People v. Martin, 50 N.Y.2d 1029, 431 N.Y.S.2d 689, 409 N.E.2d 1363; People v. Tutt, 38 N.Y.2d 1011, 384 N.Y.S.2d 444, 348 N.E.2d 920). In any event, the record supports the hearing court's determination that there was probable cause for the defendant's arrest on October 12 by Detective Clark, as the defendant was implicated by name, by an alleged accomplice (see, People v. Berzups, 49 N.Y.2d 417, 426 N.Y.S.2d 253, 402 N.E.2d 1155). This information was related at the Wade-Huntley hearing, without challenge by the defendant, by Detective Matthew Fogarty who arrested the defendant on the instant charges on October 14, after the complainant selected his photograph from an array. Detective Fogarty learned of the defendant's identity and the facts of the prior arrest from Detective Clark, who interrogated the alleged accomplice. Thus, probable cause was properly demonstrated by unchallenged hearsay testimony (cf., People v. Gonzalez, 80 N.Y.2d 883, 587 N.Y.S.2d 607, 600 N.E.2d 238) notwithstanding that the officer who received the inculpatory...