Opinion
April 13, 1987
Appeal from the Supreme Court, Kings County (Potoker, J.).
Ordered that the judgment is affirmed.
The defendant and his accomplice were arrested as a result of a drug-buying operation conducted by the New York Drug Enforcement Task Force. On August 5, 1976, a back-up team gathered outside the apartment building at which one of the undercover officers, Agent Weidel, had arranged to purchase a quantity of cocaine. Upon receiving the prearranged signal from Agent Weidel which indicated that the contemplated deal had been consummated and that the back-up team should "move in and make an arrest", the team converged and arrested the defendant's accomplice. As this arrest was being effectuated, Agent Weidel told the team members "that there was another subject in the house that was involved in the transaction", whereupon Agent Ladson, the only participant in the surveillance to testify at the suppression hearing, and two other officers joined Agent Weidel as they entered a first floor apartment of the building where they placed the defendant under arrest and seized a bag of cocaine which had been lying at his feet.
While acknowledging that an officer may effectuate an arrest based upon information conveyed to him by an undercover officer (see, People v Petralia, 62 N.Y.2d 47, cert denied 469 U.S. 852; People v Witherspoon, 115 A.D.2d 572, appeal dismissed 68 N.Y.2d 805), the defendant argues that the prosecution did not satisfy its burden of proving that the information conveyed to Agent Ladson was sufficient to establish probable cause (see, People v Ferguson, 115 A.D.2d 615).
The hearing court, which was "`presented with facts, not assurances'", and not merely "`[s]ummary statements that the police had arrived at a conclusion that sufficient cause existed'" (People v Dodt, 61 N.Y.2d 408, 415, quoting from People v Bouton, 50 N.Y.2d 130, 135), properly rejected the defendant's claim since the testimony established that Agent Weidel, who had participated in the drug-sale transaction with the defendant and thus had probable cause to arrest him, led his fellow officers directly to the defendant.
We note that to the extent that the defendant's challenge to the suppression determination is predicated upon a claim, not asserted before the hearing court, that suppression was mandated because the police entry into the apartment was neither authorized by a warrant (see, Payton v New York, 445 U.S. 573), nor upon notice (see, CPL 140.15), it is unpreserved for our review (see, People v Martin, 50 N.Y.2d 1029). In any event, the existence of probable cause and exigent circumstances provided a lawful basis for the entry into the apartment and the arrest of the defendant.
The defendant was properly tried in absentia since his deliberate failure to appear subsequent to both the conclusion of the suppression hearing and the trial court's issuance of preliminary instructions to the jury constituted a forfeiture of his right to be present at the trial (see, People v Smith, 68 N.Y.2d 725; People v Sanchez, 65 N.Y.2d 436; People v Wilson, 113 A.D.2d 909, appeal denied 66 N.Y.2d 768).
Nor do we view as persuasive the defendant's claim that the trial court abused its discretion in refusing to excuse a sitting juror who indicated concern that his continued service could result in financial hardship. This delay was in part caused by the defendant's willful failure to appear. The juror was neither "unavailable for continued service" nor "grossly unqualified to serve in the case" (CPL 270.35) since, after an extended colloquy with the court and counsel, he ultimately affirmed his intention to serve to the best of his abilities and to render a fair and impartial verdict (see, People v Buford, 69 N.Y.2d 290; People v Meyer, 78 A.D.2d 662).
Finally, while the trial court's charge to the jury with respect to the defendant's statements did include an inaccurate instruction, the charge, read as a whole, adequately and correctly explained the burden of proof in detail and therefore furnishes no basis for reversal (see, People v Robinson, 36 N.Y.2d 224, rearg denied 37 N.Y.2d 786; People v Townes, 104 A.D.2d 1057). Mollen, P.J., Mangano, Eiber and Sullivan, JJ., concur.