Opinion
February 2, 1990
Appeal from the Supreme Court, Erie County, Wolfgang, J.
Present — Denman, J.P., Boomer, Pine, Balio and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's motion to suppress evidence was properly denied, but for reasons different from those given by the suppression court. The suppression court found that the police lacked probable cause to arrest but sustained the search as the result of a permissible stop and frisk. We conclude, to the contrary, that defendant was arrested prior to being searched and thus the only inquiry is whether the arrest was supported by probable cause (see, People v Hicks, 68 N.Y.2d 234, 239; People v Cantor, 36 N.Y.2d 106, 110).
The arresting officer, Officer Wells, learned from a police radio dispatch that there had been a larceny or robbery at Pier 1 Imports store and obtained a description of the suspect. That description was later modified by officers at the scene who gave Wells a very precise description of the suspect as a black male, heavily built, about 5 feet, 9 inches, balding with close-cropped hair, who looked like Marvin Hagler, a wellknown and distinctive-looking professional boxer. The officers whose description Wells relied on had spoken with store personnel, had received reliable firsthand information concerning the crime, and had personally observed defendant and chased him through yards in a certain city block. When Wells observed defendant in that same block, defendant matched the description given by officers at the scene, was sweating and winded, and was climbing over a fence onto a residential driveway. Despite the fact that Wells identified himself as a police officer and ordered defendant to stop, defendant attempted to climb back over the fence. Those circumstances constituted probable cause for the arrest. Defendant's contention that the People failed to establish probable cause because they did not present the testimony of the radio dispatcher, the complainant or the officer with whom Wells conversed at the scene is unavailing. Where, as here, the arresting officer has received firsthand information from another officer and has confirmed that information by his own observations, there is no need to establish the reliability of the earlier information independently (see generally, People v Landy, 59 N.Y.2d 369, 373-376; People v Rodriguez, 52 N.Y.2d 483, 491-493; People v Elwell, 50 N.Y.2d 231, 241; cf., People v Lypka, 36 N.Y.2d 210, 213-214).
We have considered the other arguments raised by defendant and find them lacking in merit.