Opinion
July 16, 1992
Appeal from the County Court of Sullivan County (Lamont, J.).
On June 12, 1989 Dorothy Schultes awoke shortly after 4:00 A.M. to find an intruder standing at the foot of her bed. She immediately recognized the intruder as defendant, a neighbor residing in a downstairs apartment. Defendant eventually backed out into the common area of the building, enabling Schultes to bolt the door. Upon discovering that $40 was missing from her purse, Schultes dressed fully and with the aid of a neighbor called the Sheriff. She explained the incident to the Deputy Sheriffs who arrived at approximately 5:00 A.M. and told them where defendant resided. The Deputies went to his apartment, knocked on the door, identified themselves and, when defendant opened the door, explained that they were investigating a burglary. One of the Deputies brought Schultes to the door where she immediately confirmed that defendant was the intruder. Defendant was placed under arrest and given his Miranda rights. He was tried and convicted of burglary in the second degree. This appeal followed.
Defendant initially contends that the police were without probable cause to make a warrantless arrest in his home. We disagree. Within minutes of the crime, the victim articulated the details of the crime to the police and identified the perpetrator. This information, derived from a reasonably trustworthy source, was itself sufficient to warrant a person of reasonable caution to believe that a crime had been committed and that defendant was the perpetrator (see, People v. Blakely, 46 N.Y.2d 1026; People v. McCain, 134 A.D.2d 623, lv denied 70 N.Y.2d 957; see also, People v. Hicks, 38 N.Y.2d 90, 92; People v Beckles, 128 A.D.2d 435, 441, lv denied 69 N.Y.2d 1001). Defendant argues unpersuasively that exigent circumstances did not exist for the police to enter his home and make a warrantless arrest (see, Payton v. New York, 445 U.S. 573). Here, the evidence showed that the police made an investigatory inquiry at the door of his apartment and that their entry was consensual. In these circumstances, wholly devoid of force, it was unnecessary to prove that exigent circumstances justified the arrest (see, People v. Levan, 62 N.Y.2d 139, 144-145; People v Daly, 180 A.D.2d 872).
We further disagree with defendant's contention that the identification procedure was tainted by police deception and was unduly prejudicial. Within an hour after the crime the victim, who was familiar with the perpetrator, viewed him, knew his name, described his physical appearance and was aware of which apartment he occupied within the same small building. It has been recognized that procedures less than ideal can be tolerated in the interest of prompt identification (People v. Adams, 53 N.Y.2d 241, 249), particularly where, as here, the identification has been made in close proximity to the crime both in time and place (see, People v. Love, 57 N.Y.2d 1023, 1024-1025; People v. Cole, 100 A.D.2d 442, 446).
Defendant next contends that he was improperly denied a Payton hearing to determine the legality of the warrantless arrest made at his home (Payton v. New York, supra). During defendant's Huntley hearing (People v. Huntley, 15 N.Y.2d 72), his counsel tried to address the Payton issues. County Court heard testimony describing the circumstances existing at the time of the arrest from both arresting Deputy Sheriffs, which demonstrated that defendant voluntarily opened the door to his apartment and that no force had been used in effecting the arrest. Ultimately, the court heard defendant's Payton argument over the prosecution's objections and ruled on the issue. Moreover, defendant failed to preserve for appellate review any objections he may have had to County Court's accommodation of his request. We see no basis to reverse on this issue in the interest of justice because defendant has failed to suggest any prejudice or to allege facts about the arrest which were not explored at the hearing when any error could have been promptly remedied had defendant expressed any objection or demonstrated any fault in the manner the issue was addressed.
Finally, we reject defendant's contention that his prison sentence of 4 to 8 years is harsh and excessive. Under the circumstances of this case and given defendant's criminal background, we cannot say that County Court abused its discretion in imposing sentence (see, People v. Mackey, 136 A.D.2d 780, 781, lv denied 71 N.Y.2d 899; People v. Gray, 131 A.D.2d 590).
Levine, Mercure, Mahoney and Casey, JJ., concur. Ordered that the judgment is affirmed.