| People v Salamone |
| 2009 NY Slip Op 03293 [61 AD3d 1400] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James M.Salamone, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Wendy Evans Lehmann of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), renderedFebruary 2, 2004. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of murder inthe second degree (Penal Law § 125.25 [1]), defendant contends that County Court erredin refusing to suppress physical evidence seized from him and statements made by him to thepolice because the police lacked probable cause to arrest him. We reject that contention. Thepolice were justified in forcibly stopping defendant based upon reasonable suspicion that he hadcommitted a crime, inasmuch as defendant matched the description of the suspect in a stabbingincident and was observed as he fled from the scene of the crime in the same direction as thereported suspect (see People v Martinez, 80 NY2d 444, 447 [1992]; People vCantor, 36 NY2d 106, 112-113 [1975]). Upon stopping defendant, the officers confirmedthat defendant matched the description of the reported suspect and, following a brief detention,they also confirmed that his vehicle had been left unattended at the scene of the crime. Thepolice then had probable cause for defendant's arrest (see People v Nicodemus, 247AD2d 833, 835-836 [1998]). In view of our determination that defendant was in fact arrested, wedo not address his contention that he was subjected to a de facto arrest.
Defendant further contends that the statements made by him during the police interrogationwere involuntary on the ground that he allegedly was deprived of food for over 10 hours and wasnot allowed to sleep despite the fact that he had been awake for 26 hours. Defendant failed topreserve that contention for our review (see generally People v Miller, 43 AD3d 1381, 1382 [2007], lvdenied 9 NY3d 1036 [2008]) and, in any event, it is without merit. The record establishesthat defendant was provided with cigarettes and water, and there is no evidence that he wasdenied food or the opportunity to sleep during the period of detention and interrogation(People v Towndrow, 236 AD2d 821 [1997], lv denied 89 NY2d 1016 [1997];cf. People v Anderson, 42 NY2d 35 [1977]). Present—Hurlbutt, J.P., Peradotto,Carni, Green and Pine, JJ.