People v. Tyson

• Decision Date: 09 April 1990
• Citation: 160 A.D.2d 826,554 N.Y.S.2d 621
• Parties: The PEOPLE, etc., Respondent, v. Andre TYSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 621

554 N.Y.S.2d 621

160 A.D.2d 826

The PEOPLE, etc., Respondent, v. Andre TYSON, Appellant.

Supreme Court, Appellate Division Second Department.

April 9, 1990.

Milton Kepecs, Glen Cove (Elsie Fried, of counsel), for appellant.

Denis Dillon, Dist. Atty., Mineola (Bruce E. Whitney and Peter Shapiro, of counsel), for respondent.

Before MANGANO, P.J., and BRACKEN, KOOPER and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Nassau County (Belfi, J.), rendered February 17, 1987, convicting him of criminal possession of stolen property in the second degree and petit larceny, 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, his statements to the police, and pretrial and in-court identification testimony.

ORDERED that the judgment is modified, on the law, by reducing the defendant's conviction of criminal possession of stolen property in the second degree to criminal possession of stolen property in the fifth degree; as so modified, the judgment is affirmed.

The defendant's mere allegation that his arrest was not based upon probable cause was insufficient to challenge the reliability of the information transmitted to the arresting officer (see, People v. Jenkins, 47 N.Y.2d 722, 417 N.Y.S.2d 57, 390 N.E.2d 775; People v. Lypka, 36 N.Y.2d 210, 366 N.Y.S.2d 622, 326 N.E.2d 294; Peo ple v. McAllister, 143 A.D.2d 687, 532 N.Y.S.2d 920; People v. Muriell, 128 A.D.2d 554, 512 N.Y.S.2d 490). Clearly the officer had probable cause to arrest the defendant based not only upon the statements made to him by a passing motorist that the occupants of the vehicle which the defendant was operating had just been involved in a robbery at a gas station but also upon the information received from a radio report ( see, People v. Johnson, 66 N.Y.2d 398, 497 N.Y.S.2d 618, 488 N.E.2d 439; People v. Petralia, 62 N.Y.2d 47, 476 N.Y.S.2d 56, 464 N.E.2d 424, cert. denied 469 U.S. 852, 105 S.Ct. 174, 83 L.Ed.2d 109; People v. Landy, 59 N.Y.2d 369, 465 N.Y.S.2d 857, 452 N.E.2d 1185; People v. Lypka, supra; People v. Lacen, 154 A.D.2d 398, 546 N.Y.S.2d 378; People v. Brown, 146 A.D.2d 793, 537 N.Y.S.2d 271; People v. Inman, 80 A.D.2d 622, 436 N.Y.S.2d 63).

We further find that the search of the vehicle was proper as the police had made a valid arrest, there was reason to believe the car contained evidence related to the crime for which the defendant was arrested, and the search was contemporaneous with the arrest (see, People v. Blasich, 73 N.Y.2d 673, 543 N.Y.S.2d 40, 541 N.E.2d 40; People v. Belton, 55 N.Y.2d 49, 447 N.Y.S.2d 873, 432 N.E.2d 745).

We also agree with the hearing court's conclusion that the defendant's statements should not have been suppressed. A review of the record indicates that the prosecution never introduced the defendant's exculpatory statements and defense counsel was only permitted to elicit testimony as to two statements which were spontaneously made by the defendant. As the statements were not made in response to police interrogation, suppression was properly denied (see, People v. Lynes, 49 N.Y.2d 286, 425 N.Y.S.2d 295, 401 N.E.2d 405; People v. Wade, 143 A.D.2d 703, 533 N.Y.S.2d 83; People v. Lyons, 125 A.D.2d 593, 509 N.Y.S.2d 654). We also note that the record is devoid of any evidence which would support the defendant's claim that any coercive measures were undertaken with respect to the statements uttered by the defendant following the administration of his Miranda warnings ( see, People v. Tarsia, 50 N.Y.2d 1, 427 N.Y.S.2d 944, 405 N.E.2d 188).

The defendant's contention that the showup identifications were impermissibly suggestive is without merit. The identifications, which took place at the scenes of the two crimes only a short time after the incidents, were of the type that are constitutionally appropriate identification procedures that serve to...