Opinion
April 27, 1987
Appeal from the Supreme Court, Queens County (Lakritz, J.).
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed on the conviction of murder in the second degree to an indeterminate term of from 15 years to life imprisonment; as so modified, the judgment is affirmed.
The defendant's contention that the actions of the police after his arrest and subsequent to his request to call his father required the suppression of his confession, is without merit. A request to contact a parent is not the legal equivalent of a request for an attorney. Further, without an indication that the defendant has a need for an attorney or that an attorney has entered the proceeding, the police are not under a duty to refrain from questioning him (see, People v Fuschino, 59 N.Y.2d 91, 100). The facts adduced at the defendant's suppression hearing show that prior to being questioned, the defendant was read his Miranda rights twice and that he waived them each time. Further, we find no reason to disturb the hearing court's ruling that there were no improprieties in the procedures utilized by the police prior to the obtaining of the defendant's confession (see, People v Prochilo, 41 N.Y.2d 759, 761; People v Lambert, 125 A.D.2d 495; People v Armstead, 98 A.D.2d 726).
The brief accidental viewing of the defendant by the victim's brother, a witness to the incident, at a police station one day prior to his identification of the defendant at a lineup does not taint the identification, as the viewing occurred through mere happenstance and was not due to any fault on the part of law enforcement officials (see, People v Logan, 25 N.Y.2d 184, 193, cert denied 396 U.S. 1020; People v Whitaker, 126 A.D.2d 688; People v Bookhart, 117 A.D.2d 739, 740). Further, as the hearing court noted, the witness saw the defendant while he chased him immediately after the commission of the crime, which supplied an independent basis for his identification of the defendant (see, People v Bookhart, supra, at 740; People v Jackson, 108 A.D.2d 757, 758).
The defendant's arrest was proper, as the information supplied by other police officers to the arresting officer that a crime had been committed, the fact that the arresting officer saw the defendant fleeing from the crime scene, and additional information supplied to him by the victim's brother gave the officer probable cause for the arrest (see, People v Hearns, 122 A.D.2d 955, lv denied 68 N.Y.2d 914; People v Tidwell, 122 A.D.2d 289), and the defendant's confession and the identification of him by the victim's brother were thus not the fruit of an illegal arrest.
Although the actions of the prosecutor were hardly "a model of advocacy" as claimed by the People on appeal, the prosecutorial misconduct in this case does not require the reversal of the defendant's conviction given the overwhelming evidence of guilt against the defendant (see, People v Crimmins, 36 N.Y.2d 230, 242).
Finally, we find that the sentence was excessive to the extent indicated. Lawrence, J.P., Weinstein, Kunzeman and Kooper, JJ., concur.