People v. Smith

• Decision Date: 21 April 1986
• Parties: The PEOPLE, etc., Respondent, v. Kelvin SMITH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 183

501 N.Y.S.2d 183

119 A.D.2d 776

The PEOPLE, etc., Respondent, v. Kelvin SMITH, Appellant.

Supreme Court, Appellate Division,

Second Department.

April 21, 1986.

Russell C. Morea, Kew Gardens, for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Brian D. Foley and Sholom J. Twersky, of counsel), for respondent.

Before LAZER, J.P., and BROWN, WEINSTEIN and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ramirez, J.), rendered July 28, 1982, convicting him of robbery in the second degree (two counts), grand larceny in the third degree and assault in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of the defendant's motion to suppress certain evidence.

Judgment affirmed.

On May 25, 1981, at approximately 10:00 P.M., the defendant and six accomplices allegedly robbed and assaulted sever passengers in a subway train. After the fact that a robbery was in progress was reported to the conductor, police officers met the train when it arrived at the next station and were informed by a number of the victims and eyewitnesses that the perpetrators were still on the train. Seven individuals, including the defendant, were identified to the police, and then arrested. The defendant was tried with three codefendants.

On appeal, the defendant contends that the trial court unduly limited the defense counsel's examination of witnesses during the pretrial suppression hearing. However, we find that on the issue of probable cause for the arrest, the court restrictions of the scope of cross-examination do not constitute reversible error (see, People v. Zabrocky, 26 N.Y.2d 530, 536, 311 N.Y.S.2d 892, 260 N.E.2d 529). Moreover, we find that the testimony of the arresting officers provided sufficient evidence of probable cause for the arrest of the defendant. The hearing court's restrictions of cross-examination with respect to the Wade issue were also not reversible error.

We also find no error in the trial court's refusal to grant the defendant's request for a missing witness charge regarding the prosecutor's failure to call as a witness the second arresting police officer, who, we note, testified at the pretrial suppression hearing. The prosecutor informed the court and counsel beforehand that the officer might not be called as a witness because he was ill, and the court suggested to the...