| People v Rodriguez |
| 2011 NY Slip Op 03900 [84 AD3d 500] |
| May 10, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Daniel Rodriguez, Appellant. |
—[*1] Daniel Rodriguez, appellant pro se. Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), forrespondent.
Judgment, Supreme Court, New York County (Charles H. Solomon, J., at suppressionhearing; William A. Wetzel, J., at jury trial and sentencing), rendered October 9, 2007,convicting defendant of murder in the second degree, robbery in the first and second degrees andcriminal possession of a weapon in the second and third degrees, and sentencing him to anaggregate term of 15 years to life, unanimously affirmed. Judgment, same court (William A.Wetzel, J.), rendered October 9, 2007, convicting defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the third degree, and sentencing him to a concurrent termof three years, unanimously modified, as a matter of discretion in the interest of justice, to theextent of reducing the prison term to one year, and otherwise affirmed.
The court properly denied defendant's suppression motion. The record supports each of thetheories on which the court denied suppression.
A detective investigating a murder came upon defendant, who was visibly committing theviolation of unlawful possession of marijuana (Penal Law § 221.05). Accordingly, thedetective had probable cause to believe that defendant committed a violation in his presence(see CPL 140.10 [1] [a]). The arrest was lawful, since a police officer's authority to effecta custodial arrest for a violation, other than a minor vehicular offense (see People vMarsh, 20 NY2d 98 [1967]), remains valid even where the officer has the option of issuing asummons instead (People v Lewis,50 AD3d 595 [2008], lv denied 11 NY3d 790 [2008]).
It is irrelevant whether the detective's primary motivation for making an arrest, instead ofissuing a summons, may have been a desire to obtain evidence relating to the homicide. Theofficer's subjective state of mind would not invalidate the arrest because it was justified by thecircumstances, viewed objectively (see Whren v United States, 517 US 806, 812-813[1996]). An "arresting officer's state of mind (except for the facts that he knows) is irrelevant tothe existence of probable cause," and "his subjective reason for making the arrest need not be thecriminal offense as to which the known facts provide probable cause" (Devenpeck vAlford, 543 [*2]US 146, 153 [2004]; see also People vRobinson, 97 NY2d 341, 349 [2001]). Since there was a valid custodial arrest, the officerproperly searched defendant incident to that arrest, and all subsequent fruits of the arrest werelawfully obtained.
In any event, the evidence also supports the hearing court's finding that there was probablecause to arrest defendant for the homicide. Defendant matched the description of one of the threesuspects. The description, standing alone, would have fit too many people to justify an arrest.However, when taken together with strong circumstantial evidence linking defendant to one ofthe other suspects, it established probable cause, which does not require proof beyond areasonable doubt (see Brinegar v United States, 338 US 160, 175 [1949]; People vBigelow, 66 NY2d 417, 423 [1985]).
The record does not support defendant's speculative assertion that he was subjected to a stripsearch. We have considered and rejected defendant's remaining suppression arguments.
Defendant's juror misconduct argument is similar to an argument we rejected on acodefendant's appeal (People vAlmonte, 73 AD3d 531 [2010], lv denied 15 NY3d 771 [2010]), and we find noreason to reach a different result. Defendant did not preserve his claim that the court should havecharged justification, and we decline to review it in the interest of justice. As an alternativeholding, we reject it on the merits for the reasons we stated in rejecting a similar argument madeby the codefendant (id.).
To the extent the existing record permits review, we find that defendant received effectiveassistance of counsel under the state and federal standards (see People v Benevento, 91NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]).
As the People concede, the sentence on the controlled substance conviction should bemodified, as indicated, to conform to the plea agreement.
Defendant's pro se contentions are unpreserved and we decline to review them in the interestof justice. As an alternative holding, we also reject them on the merits.Concur—Mazzarelli, J.P., Sweeny, DeGrasse, Richter and Manzanet-Daniels, JJ.