Opinion
January 25, 1988
Appeal from the Supreme Court, Queens County (Browne, J.).
Ordered that the judgment is affirmed.
In the early morning hours of July 21, 1985, a taxicab driver was robbed by two men who then set fire to his cab with a Molotov cocktail and fled.
The following morning, Police Officer Philip Insardi pulled over an automobile in which the defendant was a passenger for traffic violations. While the officer was conducting an inquiry into the status and ownership of the vehicle which ultimately revealed that it had not been stolen, several additional police units arrived on the scene to render assistance. Officer Insardi testified at the pretrial hearing that he "was informed by one of the other officers that responded that the vehicle that [he] had stopped and the two occupants of that vehicle fit the description of a vehicle that was used in a robbery that had occurred in the past". Officer Insardi thereafter arrested the defendant and the driver of the automobile, his codefendant.
The defendant's argument that probable cause for his arrest did not exist, as evidenced by the arresting officer's testimony that, inter alia, he placed the defendant in custody in order to conduct a further investigation into the ownership of both the vehicle and a taxi meter which was seen lying on the rear floor of the car and that the defendant was not under arrest for any specific charge at the time is without merit. As this court held in People v Lopez ( 95 A.D.2d 241, 242), "judicial evaluation of police action must be based on objective criteria and not an officer's subjective view of his right to make an arrest". Therefore, Officer Insardi's subjective observations that he arrested the defendant for, inter alia, further investigation into the ownership of the taxi meter, which would clearly not constitute a proper basis for the arrest in the absence of evidence that the defendant, a passenger in the car, had physical possession or otherwise exercised dominion or control over the meter (see, Penal Law § 10.00; cf., Penal Law § 220.25, 265.15 Penal), does not militate against a finding that the information conveyed to him by a fellow officer constituted a proper basis for the arrest. Clearly the officer had probable cause to arrest the defendant based upon the information he received from a fellow officer (see, People v Lypka, 36 N.Y.2d 210, 213-214; People v Ward, 95 A.D.2d 233). The hearing record supports the conclusion that "the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest" (People v Horowitz, 21 N.Y.2d 55, 60) inasmuch as the defendants matched the descriptions of the perpetrators of the robbery/arson provided by the complainant and they were present in a vehicle bearing the license plate of an automobile wanted in the crime only one day later. The defendant's failure to have challenged the reliability of, or questioned the basis for, the information conveyed to the arresting officer by his fellow officer leaves intact the presumption of probable cause created by the information (see, People v Jenkins, 47 N.Y.2d 722; People v Muriell, 128 A.D.2d 554, lv denied 70 N.Y.2d 652; People v Ward, supra).
While portions of the court's instructions to the jury were not exemplary, the errors contained therein neither rendered the charge "fatally defective" (People v Sanders, 69 N.Y.2d 860, 861) nor warrant reversal in the interests of justice.
Finally, the record reveals that defense counsel was active and informed during the proceedings and that the defendant was afforded meaningful representation (see, People v Zaborski, 59 N.Y.2d 863; People v Baldi, 54 N.Y.2d 137). Thompson, J.P., Brown, Spatt and Sullivan, JJ., concur.