| People v Jackson |
| 2009 NY Slip Op 06572 [65 AD3d 1164] |
| September 15, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent-Appellant, v Erwin Jackson,Appellant-Respondent. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Margaret E.Mainusch of counsel), for respondent-appellant.
Appeal by the defendant from a judgment of the County Court, Nassau County (Carter, J.),rendered July 30, 2008, convicting him of robbery in the first degree (nine counts) andconspiracy in the fourth degree, after a nonjury trial, and imposing sentence, and cross appeal bythe People from the sentence, on the ground that the defendant was illegally sentenced as afirst-time felony offender instead of as a persistent violent felony offender. The appeal from thejudgment brings up for review the County Court's finding, made after a hearing pursuant towritten stipulations in lieu of motions, that the defendant's arrest was supported by probablecause.
Ordered that the judgment is modified, on the law, by vacating the sentence imposedthereon; as so modified, the judgment is affirmed, and the matter is remitted to the County Court,Nassau County, for resentencing in accordance herewith.
"The credibility determinations of a hearing court are entitled to great deference on appeal,and will not be disturbed unless clearly unsupported by the record" (People v Martinez, 58 AD3d 870,870-871 [2009]; see People v Prochilo, 41 NY2d 759 [1977]). "The 'fellow officer' ruleprovides that even if an arresting officer lacks personal knowledge sufficient to establishprobable cause, the arrest will be lawful if the officer 'acts upon the direction of or as a result ofcommunication with a superior or [fellow] officer or another police department provided that thepolice as a whole were in possession of information sufficient to constitute probable cause tomake the arrest' " (People v Ramirez-Portoreal, 88 NY2d 99, 113 [1996], quotingPeople v Horowitz, 21 NY2d 55, 60 [1967]). Statements of codefendants or accomplicesare sufficient to establish probable cause (see People v Catanzaro, 236 AD2d 418[1997]). Upon reviewing the record, we find that the County Court properly found that thedefendant's arrest was supported by probable cause.
The People correctly contend that the County Court erred in finding that they had not proventhe defendant's two predicate violent felony convictions beyond a reasonable doubt (seegenerally Penal Law § 70.08 [1]; CPL 400.15 [7] [a]; People v Scarbrough, 66NY2d 673 [1985]). Indeed, this Court has affirmed judgments based upon both of the defendant'spredicate violent felony convictions (see People v Jackson, 151 AD2d 694 [1989];People v Jackson, 83 AD2d 843 [1981]). Thus, the defendant's sentence is illegal, andthe matter must be remitted to the County Court, Nassau County, [*2]for resentencing (see People v Melendez, 254 AD2d 74,74-75 [1998]).
The defendant's contentions, raised in points II, IV, V, and VI of his pro se brief, areunpreserved for appellate review and, in any event, are without merit.
The defendant's remaining contention, raised in point I of his pro se brief, is without merit.Skelos, J.P., Santucci, Balkin and Leventhal, JJ., concur.