Opinion
Argued May 25, 2001
June 18, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered October 26, 1998, convicting him of attempted murder in the second degree and robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
Andrew C. Fine, New York, N.Y. (Katheryne M. Martone of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Diana Villanueva of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., MYRIAM J. ALTMAN, DANIEL F. LUCIANO, THOMAS A. ADAMS, JJ.
ORDERED that the judgment is affirmed.
The defendant contends that his arrest was not based on probable cause, and therefore identification testimony obtained as a result of his arrest should be suppressed. We disagree. At the suppression hearing, the People presented evidence that the defendant's girlfriend provided information to the police implicating him in several commercial armed robberies in the 68th and 72nd Precincts which was sufficient to establish probable cause for his arrest. The girlfriend cooperated with detectives from both precincts in arranging a meeting with the defendant on a street in Brooklyn, where the police intended to apprehend him. In preparation, the police distributed the defendant's photograph and placed about 30 officers in the area surrounding the meeting site. However, when the defendant arrived at the scene, he eluded the attempt to stop his vehicle and led the police on a high speed chase.
An officer from the 68th Precinct on anti-crime patrol in the area at the time, received a radio transmission regarding the pursuit of a dark-colored Mercury vehicle driven by a male Hispanic, 5'8" tall who was believed to be heavily armed. The officer subsequently observed a red Mercury pass by at a high rate of speed followed by two police cars. As he drove toward Fort Hamilton Parkway and 86th Street, he received another radio transmission that the suspect had abandoned his vehicle at 89th Street and Far Rockaway Parkway and was on foot.
About five minutes later, the officer was driving on 86th Street when he observed a man walk onto 86th Street from Far Rockaway Parkway. This section of 86th Street was a commercial area, it was about 2:00 A.M., and there was no one else on the street. The officer drove his vehicle past the man before making a U-turn to face him. He observed that the man was Hispanic, about 5'8" tall, and he appeared to have been running, as he was sweating and breathing fast. The officer and his partner, who had his gun drawn, stopped the defendant and handcuffed him. About two minutes later, numerous officers arrived on the scene, and a detective from the 72nd Precinct took the defendant into custody.
The defendant contends that the description provided to the anti-crime officer in the radio transmission was too vague to constitute probable cause for his arrest (see, People v. Jones, 95 N.Y.2d 721, 727-728), and there was no evidence that this officer was part of the team assigned to apprehend him. We agree with the Supreme Court that the description of the defendant, the time and place where he was found, the absence of anyone else on the street, and the fact that he appeared to have been running, at the very least, established reasonable suspicion to stop and detain him until other police units arrived (see, People v. Hicks, 68 N.Y.2d 234; People v. Jennings, A.D.2d [1st Dept., Mar. 20, 2001]; People v. Voss, 262 A.D.2d 105; People v. Sharpe, 259 A.D.2d 639). In view of the information that the suspect was armed, the officers were entitled to handcuff the defendant as a safety precaution (see, People v. Allen, 73 N.Y.2d 378; People v. Jennings, supra; People v. Erazo, 256 A.D.2d 16).
Once members of the apprehension team arrived on the scene, there was probable cause for the defendant's arrest, as his photograph had been circulated to them. Evidence was elicited that at least one member of the team was among the officers who proceeded to 86th Street and observed the defendant. The defendant also contends that probable cause was not established because the People failed to present evidence with respect to the detective from the 72nd Precinct who actually took him into custody at 86th Street and transported him to the precinct. Even assuming that this detective had no firsthand knowledge of the evidence implicating the defendant in the robberies, it can be inferred that he was acting at the direction of the team assigned to apprehend the defendant. Under the fellow-officer rule, the arrest was permissible since the police, as a whole, were in possession of information sufficient to constitute probable cause (see, People v. Mims, 88 N.Y.2d 99, 113-114).
The defendant's contention that the Supreme Court's denial of his request for the assignment of new counsel violated his constitutional rights is without merit. Although an indigent defendant has a right to a court-appointed attorney, he does not have the right to his choice of assigned counsel (see, People v. Sawyer, 57 N.Y.2d 12, cert denied 459 U.S. 1178; People v. Rua, 198 A.D.2d 311, 312). The decision to appoint new counsel is within the trial court's discretion upon a showing of good cause (see, People v. Sides, 75 N.Y.2d 822; People v. Medina, 44 N.Y.2d 199, 207). The basis for the defendant's request, which was made immediately prior to the suppression hearing, was belied by the record and, therefore, failed to establish good cause for a substitution of counsel (see, People v. Medina, supra; People v. Rua, supra).
The court did not err in imposing consecutive terms of imprisonment (see, People v. Butler, 241 A.D.2d 912; People v. Turner, 212 A.D.2d 818; see also, People v. Laureano, 87 N.Y.2d 640, 643). The defendant's sentence is not excessive (see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contention is unpreserved for appellate review.
O'BRIEN, J.P., ALTMAN, LUCIANO and ADAMS, JJ., concur.