People v. Waite

• Decision Date: 16 October 1997
• Citation: 243 A.D.2d 820,663 N.Y.S.2d 901
• Parties: , 1997 N.Y. Slip Op. 8520 The PEOPLE of the State of New York, Respondent, v. Stephen M. WAITE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 901

663 N.Y.S.2d 901

243 A.D.2d 820, 1997 N.Y. Slip Op. 8520

The PEOPLE of the State of New York, Respondent, v. Stephen M. WAITE, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 16, 1997.

Carl J. Silverstein, Monticello, for appellant.

Gerald F. Mollen, District Attorney (Kevin P. Dooley of counsel), Binghamton, for respondent.

Before CARDONA, P.J., and MERCURE, PETERS, SPAIN and CARPINELLO, JJ.

SPAIN, Justice.

Appeal from a judgment of the County Court of Broome County (Mathews, J.), rendered November 20, 1995, upon a verdict convicting defendant of the crimes of sodomy in the first degree (five counts) and aggravated sexual abuse in the first degree.

In December 1994 defendant was indicted on five counts of sodomy in the first degree and two counts of aggravated sexual abuse in the first degree. The indictment alleged, inter alia, that defendant had engaged in five separate acts of deviate sexual intercourse with another person by means of forcible compulsion. Following a jury trial, defendant was convicted of all five counts of sodomy in the first degree and one count of aggravated sexual abuse in the first degree; he was sentenced as a persistent felony offender to concurrent terms of imprisonment of 25 years to life on each count. Defendant appeals.

We affirm. Initially, we reject defendant's contention, contained in his pro se brief, that his arrest and the ensuing search of his van were illegal. The evidence adduced at the suppression hearing revealed that the victim contacted the State Police, identified himself by name and provided his address and phone number; he was crying when he reported that he had been sodomized and stabbed by a man who was sleeping in a white van parked outside his residence. Thereafter, two State Troopers were dispatched and instructed to investigate the matter. Upon arrival, the officers approached the vehicle and determined that its front seats were unoccupied. After knocking on the windows and doors and receiving no response, the officers opened the unlocked rear door and discovered defendant inside. As defendant acceded to the officers' request to exit the vehicle and identify himself, the officers observed blood on his shirt. One of the officers testified that, in response to his inquiry as to the origin of the blood, defendant denied that the red substance was blood and insisted that he had stained the shirt while eating salsa with a knife. Defendant was handcuffed and placed in a patrol car. Shortly after obtaining a statement from the visibly shaken victim, which essentially repeated the sodomy allegations, the officers returned to the patrol car where defendant was read his Miranda rights.

Probable cause for a warrantless arrest exists where there is information sufficient to support a reasonable belief that an offense has been or is being committed by the suspect (see, People v. Maldonado, 86 N.Y.2d 631, 635, 635 N.Y.S.2d 155, 658 N.E.2d 1028; People v. Hicks, 68 N.Y.2d 234, 508 N.Y.S.2d 163, 500 N.E.2d 861). While generally such probable cause may not be premised upon hearsay information lacking indicia of reliability (see, Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; People v. Griminger, 71 N.Y.2d 635, 529 N.Y.S.2d 55, 524 N.E.2d 409), information provided by an identified citizen and derived from personal knowledge enjoys a presumption of reliability and may form the basis for probable cause (see, People v. Chipp, 75 N.Y.2d 327, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70; People v. Jackson, 235 A.D.2d 923, 924-925, 653 N.Y.S.2d 419, 421). In the instant case the detailed information provided by the disclosed victim and the fact that the victim's statement designating the perpetrator's location was quickly ascertained to be correct, coupled with defendant's appearance and statements upon exiting the vehicle, were sufficient to provide police with probable cause to believe that defendant had perpetrated an act of violence upon the victim (see, e.g., People v. Lacen, 154 A.D.2d 398, 546 N.Y.S.2d 378, lv. denied 74 N.Y.2d 949, 550 N.Y.S.2d 284, 549 N.E.2d 486). Having determined the legality of defendant's arrest, we reject defendant's contention that the evidence obtained thereafter is "fruit of the poisonous tree" (see, People v. Pegues, 208 A.D.2d 773, 617 N.Y.S.2d 783, lv. denied84 N.Y.2d 1014, 622 N.Y.S.2d 926, 647 N.E.2d 132; People v. Johnson, 102 A.D.2d 616, 478 N.Y.S.2d 987).

In support of their search of the van, the officers testified at the suppression hearing that subsequent to the arrest and after agreeing to speak with them defendant denied any sexual involvement with the victim or having inflicted his injuries, and gave the officers permission to search the van for the knife which he claimed he used to eat the salsa. The officers then entered the van and located two knives, one which appeared to be blood-stained and another which was covered with a salsa-like substance. Notably, defendant does not claim that his consent to this search was involuntary; in our view, that consent alone justified the initial warrantless search of the van (see, People v. Reyes, 174 A.D.2d 367, 570 N.Y.S.2d 573, lv. denied 78 N.Y.2d 1014, 575 N.Y.S.2d 822, 581 N.E.2d 1068; People v. Gilbert, 122 A.D.2d 454, 505 N.Y.S.2d 238, lv. denied 68 N.Y.2d 812, 507 N.Y.S.2d 1029, 499 N.E.2d 878). Defendant's van was impounded for an inventory search within minutes of his arrest and defendant makes no contention that the inventory search was not conducted in accordance with proper inventory procedure (see, People v. Burghart, 177 A.D.2d 866, 576 N.Y.S.2d 634).

Next, "viewing the evidence in a neutral light while giving due deference to the jury's assessment of credibility" (People v. Hubert, 238 A.D.2d 745, 746, 656 N.Y.S.2d 493, 494, lvs. denied 90 N.Y.2d 859, 860, 661 N.Y.S.2d 186, 683 N.E.2d 1060; see, People v. Rose, 215 A.D.2d 875, 877, 626 N.Y.S.2d 883, lvs. denied 86 N.Y.2d 793, 801, 632 N.Y.S.2d 506, 515, 656 N.E.2d 605, 614), we reject defendant's contention that his conviction was against the weight of the evidence. "Minor inconsistencies in the [victim's] testimony and defendant's denial that he committed the crimes merely create[s] a credibility issue for the jury's resolution * * * " (People v. Corbett, 208 A.D.2d 1059, 617 N.Y.S.2d 573 [citations omitted]; see, People v. Dunavin, 173 A.D.2d 1032, 570 N.Y.S.2d 369, lv. denied 78 N.Y.2d 965, 574 N.Y.S.2d 945, 580 N.E.2d 417; People v. Szczepanski, 172 A.D.2d 884, 568 N.Y.S.2d 184, lv. denied 78 N.Y.2d 957, 573 N.Y.S.2d 653, 578 N.E.2d 451); further, the jury's determination is afforded great weight on appeal (see, People v. Day, 215 A.D.2d 894, 626 N.Y.S.2d 888, lv. denied 86 N.Y.2d 793, 632 N.Y.S.2d 506, 656 N.E.2d 605; People v. Farrell, 210 A.D.2d 428, 620 N.Y.S.2d 968, lv. denied 85 N.Y.2d 861, 624 N.Y.S.2d 380, 648 N.E.2d 800; People v. Stumbrice, 194 A.D.2d 931, 599 N.Y.S.2d 325, lv. denied 82 N.Y.2d 727, 602 N.Y.S.2d 824, 622 N.E.2d 325).

Here, the victim, a male in his mid-30s, testified that after what he described as a chance meeting with defendant at a rest area parking lot, he willingly entered defendant's van where he engaged in consensual fondling with defendant....