People v. Taylor

• Decision Date: 22 April 1991
• Citation: 569 N.Y.S.2d 454,172 A.D.2d 784
• Parties: The PEOPLE, etc., Respondent, v. David TAYLOR, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 454

569 N.Y.S.2d 454

172 A.D.2d 784

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

Supreme Court, Appellate Division Second Department.

April 22, 1991.

Philip L. Weinstein, New York City(Steven C. Losch, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Michael Gore, and Timothy J. Mayopoulos, of counsel), for respondent.

Before LAWRENCE, J.P., and HARWOOD, ROSENBLATT and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County(Goldberg, J.), rendered September 28, 1987, convicting him of robbery in the first degree and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and statements made by him to law enforcement authorities.

ORDERED that the judgment is affirmed.

The defendant's contention that the trial court improperly based its finding of probable cause, in part, upon the unsworn statement of the prosecutor, made during a side-bar conference in the course of the suppression hearing, is unsupported by the record.The arresting officer's actions in stopping the defendant in order to inquire as to his recent whereabouts were presumptively valid as they were based on information provided in a radio transmission from a fellow police officer (see, People v. Lypka, 36 N.Y.2d 210, 213-214, 366 N.Y.S.2d 622, 326 N.E.2d 294;see also, CPL 140.50[1];People v. DeBour, 40 N.Y.2d 210, 233, 386 N.Y.S.2d 375, 352 N.E.2d 562;People v. McLaughlin, 132 A.D.2d 712, 518 N.Y.S.2d 407).At the suppression hearing, the defendant did not specifically challenge the reliability of the information provided by the transmitting officer, and therefore, this issue is unpreserved for appellate review ( see, People v. Fenner, 61 N.Y.2d 971, 475 N.Y.S.2d 276, 463 N.E.2d 617;People v. Ward, 95 A.D.2d 233, 240, 465 N.Y.S.2d 556).Furthermore, the defendant was carrying the stolen property, and in response to the police officer's inquiry, made an inculpatory statement placing himself at the scene of the crime.Thus, we find that there was a sufficient basis, independent of the challenged comment by the prosecutor, to support a finding that the arresting officer possessed reasonable cause to believe that the defendant had committed the crime (see, CPL 140.10[1][b].

The defendant's contention that he was deprived of a fair trial by the People's failure to produce at trial the police officer who made the radio transmission, is unpreserved for appellate review (see, People v. De Tore, 34 N.Y.2d 199, 207, 356 N.Y.S.2d 598, 313 N.E.2d 61;cert. denied sub nom.Wedra v. New York, 419 U.S. 1025, 95 S.Ct. 503, 42 L.Ed.2d 300).In any event, there is no...