| People v Jones |
| 2011 NY Slip Op 05405 [85 AD3d 612] |
| June 23, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v LesterQ. Jones, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Grace Vee of counsel), forrespondent.
Judgment, Supreme Court, New York County (Maxwell Wiley, J., at suppression hearing;Thomas A. Farber, J., at jury trial and sentencing), rendered May 1, 2008, convicting defendantof burglary in the first degree and robbery in the second degree, and sentencing him, as apersistent violent felony offender, to concurrent terms of 20 years to life, unanimously affirmed.
Upon defendant's appeal from his conviction, this Court remanded the matter to the SupremeCourt for a hearing and held the appeal in abeyance pending a disposition of defendant'ssuppression motion (73 AD3d 662 [2010]). The court conducted the hearing and denieddefendant's motion to suppress lineup identification evidence. We conclude that the courtproperly determined that the lineup was not the product of an unlawful detention. We find nobasis for disturbing the court's credibility determinations.
The hearing court correctly found that although the police initially lacked probable cause toarrest defendant, the lineup identification by the victim was based on intervening probable causeand was sufficiently attenuated from the illegal arrest (see e.g. People v Garcia,281 AD2d 234 [2001], lv denied 96 NY2d 862 [2001]; People v Brown, 215AD2d 333, 334 [1995], appeal withdrawn 86 NY2d 791 [1995]; see also People vPleasant, 54 NY2d 972, 973-974 [1981], cert denied 455 US 924 [1982]). Initially,we note that for Fourth Amendment purposes, an arrest requiring probable cause took place whendefendant was taken into custody, regardless of whether, for police department purposes,defendant was formally arrested for the robbery only after the victim selected him from thelineup. The sergeant who arrested defendant had information connecting defendant to therobbery, and acted in good faith, but, as the hearing court concluded, that information fell shortof probable cause.
At the time of the arrest, the sergeant was unaware of other information possessed by adetective that did satisfy the requirements of probable cause. Shortly after the robbery, which wasseveral weeks before the arrest, the detective who had been investigating the robbery hadobtained a detailed description of the robber from the victim. The detective also spoke to aneyewitness, who was an identified citizen informant speaking from personal knowledge (see[*2]People v Hetrick, 80 NY2d 344, 348 [1992]; People vHicks, 38 NY2d 90 [1975]). The eyewitness was acquainted with defendant, and provided aneven more specific description, including a prominent facial feature and a distinctive nickname.The detective located a photograph of a person who, according to police records, used the samenickname. The detective observed that defendant, who was the person in the photo, closelymatched the descriptions given by the victim and eyewitness. Taken together, this evidence wassufficient to give the detective probable cause to arrest defendant (see People v Cameron,268 AD2d 307 [2000], lv denied 94 NY2d 917 [2000]). The match between theinformation provided by the witnesses and the information in police files, including thedistinctive facial feature and nickname, provided a reliable basis for concluding that the policerecord concerning the nickname was correct, and that defendant was the same person referred toby the eyewitness.
Shortly after taking defendant into custody, the sergeant who arrested him was in contactwith the investigating detective. Among other things, the detective advised the sergeant about theexistence of a photograph of the suspected robber, and the sergeant compared that photographwith defendant. Under the circumstances, the communication between the detective and thesergeant constituted a direction to arrest defendant. Accordingly, under the fellow officer rule,the sergeant now had probable cause for defendant's continued detention (see People vRamirez-Portoreal, 88 NY2d 99, 113 [1996]). Accordingly, there is no basis for suppressingthe ensuing lineup identification. We have considered and rejected defendant's remainingsuppression arguments, including all of his procedural claims.
Turning to the additional arguments raised on defendant's initial appeal, we first concludethat the trial court properly exercised its discretion in receiving evidence of threats made to awitness by third parties. There was sufficient circumstantial evidence to connect the threats todefendant and to warrant an inference as to his consciousness of guilt (see People vBonnemere, 308 AD2d 418 [2003], lv denied 1 NY3d 568 [2003]). The courtprovided a thorough limiting instruction, which the jury presumably followed.
Defendant's challenges to the prosecutor's summation are unpreserved and we decline toreview them in the interest of justice. As an alternative holding, we find no basis for reversal(see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998];People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884[1993]).
The trial court properly denied defendant's CPL 330.30 (3) motion to set aside the verdict onthe ground of newly discovered evidence. The evidence at issue was available before and duringtrial. Accordingly, it did not qualify as newly discovered.
Defendant's ineffective assistance of counsel claims are unreviewable on direct appealbecause they involve matters outside the record (see People v Rivera, 71 NY2d 705, 709[1988]; People v Love, 57 NY2d 998 [1982]). On the existing record, to the extent itpermits review, we find that defendant received effective assistance under the state and federalstandards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see alsoStrickland v Washington, 466 US 668 [1984]). Concur—Tom, J.P., Friedman, Acostaand Abdus-Salaam, JJ.