| People v Dunnell |
| 2009 NY Slip Op 04965 [63 AD3d 535] |
| June 18, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Charlie Dunnell, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Jung Park of counsel), forrespondent.
Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered August1, 2006, as amended on or about December 4, 2008, convicting defendant, after a jury trial, ofgrand larceny in the fourth degree, and sentencing him, as a second felony offender, to a term of2 to 4 years, unanimously affirmed.
Following this Court's remand (50 AD3d 606 [2008]), the hearing court properly denieddefendant's suppression motion. The police responded to a radio transmission indicating thatthere was a robbery in progress and observed an identified citizen informant holding defendantagainst a car. The hearing evidence supports the conclusion that when the police arrived, thecomplainant continued to hold defendant and exclaimed that defendant had robbed him,whereupon the police handcuffed defendant, despite defendant's assertion that the other man hadrobbed him. We conclude that the police had probable cause for defendant's arrest at the momentof the handcuffing. The requirements of probable cause (see Spinelli v United States,393 US 410 [1969]; Aguilar v Texas, 378 US 108 [1964]) were satisfied because thecomplainant's status as a citizen informant established his reliability (see People vHetrick, 80 NY2d 344, 348 [1992]; People v Hicks, 38 NY2d 90 [1975]), and hewas speaking from personal knowledge. Moreover, his behavior in continuing to hold defendantafter the police arrived was more consistent with that of a crime victim than a perpetrator. Whiledefendant's claim to have been the actual victim may have raised a credibility issue to beresolved at trial, it did not undermine probable cause for his arrest (see People v Taylor,61 AD3d 537 [2009]; People v Roberson, 299 AD2d 300 [2002], lv denied 99NY2d 619 [2003]). Even if the circumstances could be viewed as providing probable cause toarrest both men on each other's complaints (cf. Matter of Holtzman v Hellenbrand, 130AD2d 749 [1987], lv denied 70 NY2d 607 [1987] [whether to permit a defendant tomake a cross complaint against an accuser is a matter of prosecutorial discretion]), this did notrender defendant's arrest unlawful.
The court properly exercised its discretion in denying defendant's request for a mistrial orlengthy midtrial continuance for the purpose of obtaining further information about theunderlying facts of one of the complainant's prior convictions (see People v Pitts, 255AD2d 220 [1998], lv denied 93 NY2d 976 [1999]). Defendant received ampleopportunity to cross-examine [*2]the complainant about thisconviction and its underlying facts, and his suggestion that the additional information wouldhave had significant probative value is speculative.
The court's curative instruction was sufficient to prevent the challenged portion of theprosecutor's summation from causing any prejudice. Concur—Tom, J.P., Mazzarelli,Andrias and Acosta, JJ.