Opinion
December 10, 1990
Appeal from the Supreme Court, Kings County (Finnegan, J.).
Ordered that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by providing that the sentences for sexual abuse in the first degree (three counts) and assault in the second degree shall run concurrently to each other and consecutively to the concurrent sentences for kidnapping in the first degree (two counts), robbery in the first degree (two counts), burglary in the first degree (two counts), and criminal possession of stolen property in the third degree; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, the police had probable cause to arrest him. It is well settled that a police officer may arrest a person without a warrant when he has probable cause to believe that that person has committed a crime (see, People v. Johnson, 66 N.Y.2d 398, 402). "`[A]n arrest need not be supported by information and knowledge which, at the time, excludes all possibility of innocence and points to the defendant's guilt beyond a reasonable doubt * * * As the very name suggests, probable cause depends upon probabilities, not certainty'" (People v. Bero, 139 A.D.2d 581, 584; People v. Sanders, 79 A.D.2d 688, 690).
The information leading to the defendant's arrest was provided by the complainant, the codefendant Henry Torres and the complainant's boyfriend. Initially, the police were informed by both the codefendant and complainant that one of the perpetrators of the crime was a man by the name of Nelson. The complainant informed the police that she knew Nelson through her boyfriend. The police questioned her boyfriend and ascertained the full name and address of his friend Nelson, who is the defendant. The defendant was subsequently arrested after he identified himself to the police in the vicinity of the address given by the boyfriend. Viewed in conjunction with the information provided by the codefendant and complainant, the information provided by the boyfriend was sufficient to provide the police with probable cause to arrest the defendant (see, People v. Bigelow, 66 N.Y.2d 417). We note additionally that the other information provided to the police by the boyfriend could be properly relied on since it was corroborated by other evidence discovered pursuant to independent police investigation (see, People v. Johnson, supra; People v. Elwell, 50 N.Y.2d 231).
The imposition of consecutive sentences for two of the three sexual abuse convictions was improper since the record reveals that these crimes were not the result of disparate and separate acts (see, Penal Law § 70.25; People v. Brathwaite, 63 N.Y.2d 839). Although during the attack the defendant committed several distinct crimes relating to sexual abuse, they all resulted from what was essentially one continuous act and so the sentences imposed for these crimes should run concurrently (see, People v. Williams, 141 A.D.2d 783). Furthermore, given the specific circumstances of this case, the judgment is modified, as a matter of discretion in the interest of justice (see, CPL 470.15), so that the sentences for the kidnapping, robbery and burglary convictions run concurrently to each other (see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are either unpreserved for appellate review (see, CPL 470.05) or without merit (see, People v. Mathis, 150 A.D.2d 613; People v. Mehmedi, 69 N.Y.2d 759). Bracken, J.P., Harwood, Miller and Ritter, JJ., concur.