People v. Slater

• Decision Date: 16 May 1991
• Citation: 570 N.Y.S.2d 691,173 A.D.2d 1024
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael A. SLATER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 691

570 N.Y.S.2d 691

173 A.D.2d 1024

The PEOPLE of the State of New York, Respondent, v. Michael A. SLATER, Appellant.

Supreme Court, Appellate Division,

Third Department.

May 16, 1991.

Isabelle Rawich, South Fallsburg, for appellant.

Stephen F. Lungen, Dist. Atty. (Claire Sullivan, of counsel), Monticello, for respondent.

Before MAHONEY, P.J., and MIKOLL, LEVINE, CREW and HARVEY, JJ.

CREW, Justice.

Appeal from a judgment of the County Court of Sullivan County (Hanofee, J.), rendered June 16, 1989, upon a verdict convicting defendant of the crimes of murder in the second degree (four counts), burglary in the first degree (two counts), rape in the first degree, sodomy in the first degree, criminal possession of a weapon in the third degree (two counts) and petit larceny.

On the morning of March 8, 1988 Robert McCarvel arrived at his home at 34 Grant Street in the Village of Liberty, Sullivan County, and found his deceased wife lying on her back on the kitchen floor with a hammer sticking out of her right temple. McCarvel immediately alerted the police who began an intensive investigation. Sometime in the early evening of that day, a local cab driver was interviewed and revealed that he had made two deliveries to the McCarvel residence the previous night between 12:00 A.M. and 2:00 A.M. of food, beer and cigarettes. He stated that on both occasions he was met at the door by a white male in his teens or early 20s and that during the second delivery he heard music and a female voice in the background. The police received information that defendant had visited a woman at 38 Grant Street in the Village in the early morning hours of the day of the murder and was in possession of a quantity of $50 bills. McCarvel had previously advised the police that a quantity of money was missing from his home which was comprised largely of $50 bills. Armed with this information State Police investigators went to defendant's residence, where they were met by his landlord who escorted them to defendant's room. The investigators informed defendant that they were investigating an assault and requested that he accompany them to the State Police substation, which he agreed to do.

While at the substation defendant sat alone in a room while various investigators were engaged in interviewing other people. At some point they began questioning defendant, preceded by a recitation of his Miranda rights. Defendant acknowledged the import of those rights and expressed a willingness to assist the police in their investigation. Defendant initially claimed that he had been at home the entire evening. However, he ultimately admitted being at the victim's home but denied any involvement in her death. During questioning, defendant consented to having his picture taken and a photo array was displayed to the cab driver who identified defendant as the person to whom he had made the deliveries. Sometime after 11:00 P.M. defendant told one of the investigators that he wanted to speak to him regarding the crime. He then explained that he and "David McCarvel" were present when the victim was stabbed by a man defendant identified as "Alan". During this sequence of events, the police obtained a search warrant for defendant's room and upon execution of the warrant found various items of blood-stained clothing. At approximately 3:00 A.M. defendant was confronted with this fact, at which time he related that on the night of the homicide he had gone to the McCarvel residence where he watched television, played poker and drank beer with the victim. He further stated that they had sex on the couch and thereafter he choked, stabbed and hit the victim in the head with a hammer. Defendant was then arrested and subsequently indicted and convicted for murder, burglary, rape, sodomy, criminal possession of a weapon and petit larceny.

On this appeal defendant contends, inter alia, that County Court erroneously denied his suppression motion, that the search warrant was not supported by probable cause, that the court improperly denied his request for an adjournment and that the convictions for rape and sodomy were against the weight of the evidence.

Following the suppression hearing, County Court found as a matter of fact and law that defendant was not subject to custodial interrogation until 11:00 P.M. and that his statements made thereafter were voluntarily and knowingly made following an intelligent waiver of his constitutional guarantees. Defendant testified at his suppression hearing and his testimony was in sharp conflict with that of the investigating officers. It is axiomatic that on our review of the record, we should afford great deference to the determination of the hearing court which had the opportunity to see and hear the witnesses (see, People v. Flores, 153 A.D.2d 585, 544 N.Y.S.2d 630, lv. denied 75 N.Y.2d 770, 551 N.Y.S.2d 912, 551 N.E.2d 113). Additionally, where conflicting inferences may be drawn from the proof adduced, the inference chosen by the trier of the fact should be honored unless unsupported as a matter of law (People v. Yukl, 25 N.Y.2d 585, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89). Here, the relevant facts about which conflicting testimony was presented were indeed numerous and, in each instance, County Court credited the testimony of the police investigators over that of defendant. We decline to disturb the court's findings. Additionally, from the testimony adduced from the police investigators it cannot be said, as a matter of law, that County Court erred in concluding that the defendant was not "in custody" throughout the questioning from 8:00 P.M. until 11:00 P.M.

We next reject defendant's argument that the search warrant application was defective. Defendant contends that the facts provided to the issuing Magistrate by State Police Investigator Edward McKenna in his application were based upon information he received from other law enforcement officers involved in the investigation and were therefore hearsay requiring supporting affidavits from the officers who spoke with defendant, the cab driver and the woman who had seen the $50 bills in defendant's possession (CPL 690.35[2][c]. We have previously held that the affidavit of a police officer based upon observations of a fellow officer engaged in a common investigation furnishes a reliable basis for a warrant applied for by any of them (People v. Cuyler, 44 A.D.2d 881, 355 N.Y.S.2d 843; see also, People v. Montague, 19 N.Y.2d 121, 278 N.Y.S.2d 372, 224 N.E.2d 873, cert. denied 389 U.S. 862, 88 S.Ct. 116, 19 L.Ed.2d 130). To the extent that People v. Fromen, 125 A.D.2d 987, 510 N.Y.S.2d 384, lv. denied 69 N.Y.2d 880, 515 N.Y.S.2d 1027, 507 N.E.2d 1097 holds otherwise, we disagree. Also rejected is defendant's suggestion that the application was defective in not having established the reliability of the cab driver and the woman who had observed defendant in possession of the $50 bills. Unlike the case of a confidential informant, where a citizen provides information to the police, the need to establish his or her reliability is unnecessary (see, People v. Hicks, 38 N.Y.2d 90, 378 N.Y.S.2d 660, 341 N.E.2d 227; People v. Bakker, 133 A.D.2d 161, 518 N.Y.S.2d 680; People v. Brown, 95 A.D.2d 569, 469 N.Y.S.2d 159). Furthermore, the reliability of the information...