Opinion
March 24, 1994
Appeal from the Supreme Court, Albany County (Harris, J.).
Defendant's conviction arose out of charges that he and codefendant Linda Edmonds robbed and killed Asbury Booker in the City of Albany. Based upon an interview with Willie McDuffie, a witness to the incident, the police learned that Edmonds was with Booker shortly before he was killed. McDuffie also gave the police a description of a person he saw crouching over Booker's body, and he told the police that the person got into a car in which Edmonds was sitting and drove off. Based upon McDuffie's description of the car, the police determined that it belonged to Edmonds. The day after the murder, the police stopped Edmonds' vehicle, which was being driven by defendant; Edmonds was a passenger. According to the officers who testified at the suppression hearing, defendant met the description given to them by McDuffie of the man crouching over Booker. Defendant was taken to the police station, where he was advised of his Miranda rights. McDuffie thereafter identified defendant from a photographic array and the police obtained defendant's consent to search his apartment.
Defendant contends that the evidence seized from his apartment should have been suppressed because his warrantless arrest was illegal. According to defendant, the physical description given by McDuffie was too vague and meager to constitute probable cause to believe that defendant was involved in Booker's murder (see, e.g., People v. Gunter, 158 A.D.2d 541, 542, appeal dismissed 76 N.Y.2d 735). Regardless of the merits of this argument, it is clear that the police did not rely only upon McDuffie's description. The police had confirmed Edmonds' presence at the scene of the murder and that she was with Booker shortly before he died, and that the person seen crouching over Booker had driven away with Edmonds in Edmonds' vehicle. When the vehicle was stopped the next day, defendant was driving and Edmonds was a passenger. Considering all of the circumstances, including the officers' unequivocal testimony that defendant matched the description given by McDuffie, we conclude that probable cause existed for defendant's arrest (see, People v. Mojica, 171 A.D.2d 698; People v. Peters, 136 A.D.2d 750, lv denied 72 N.Y.2d 864; People v Rodriquez, 128 A.D.2d 740).
We find no merit in defendant's argument that his consent to search his apartment was coerced (see, People v. Walton, 144 A.D.2d 180, 181, lv denied 73 N.Y.2d 897). Defendant's double jeopardy claim is also meritless, inasmuch as his first trial terminated upon his motion for a mistrial (see, People v Catten, 69 N.Y.2d 547, 554; People v. Lowe, 194 A.D.2d 825, 826, lv denied 82 N.Y.2d 722).
Defendant also alleges several instances of prosecutorial misconduct. As to the Rosario material, there is no evidence of substantial prejudice from the prosecution's late production of the material (see, People v. Clark, 194 A.D.2d 868, lv denied 82 N.Y.2d 752). Defendant's claim based upon CPL 710.30 was not preserved by adequate objection (see, People v. Guerrero, 69 N.Y.2d 628, revg on dissenting opn below 111 A.D.2d 350, 355-356), and in any event the statements were exculpatory in nature (see, People v. Reed, 154 A.D.2d 629, 630, lv denied 75 N.Y.2d 774). We have considered defendant's other arguments, including those raised in defendant's pro se brief, and find them lacking in merit. We also note that the record contains overwhelming proof of defendant's guilt.
Mikoll, J.P., White and Yesawich Jr., JJ., concur. Ordered that the judgment is affirmed.