Opinion
May 4, 1995
Appeal from the Supreme Court, New York County (Edward McLaughlin, J.).
On this appeal, defendant maintains that his warrantless arrest, in a public place, was without probable cause and that, as a result, his statements admitting to the murder for which he was apprehended should be suppressed. It is defendant's contention that his arrest was unlawful because he was committing no act at the time of his apprehension which would constitute a predicate for his detention and that the evidence possessed by police was insufficient to provide probable cause that he had committed the crime of murder.
This case was previously heard by this Court in 1993 (People v Vasquez, 200 A.D.2d 344, lv denied 84 N.Y.2d 873). The appeal was held in abeyance and the matter remanded for a Dunaway (Dunaway v New York, 442 U.S. 200) hearing based upon People v Mendoza ( 82 N.Y.2d 415 [Nov. 22, 1993, Kaye, Ch. J.]) and upon defendant's assertion, contained in his omnibus motion, that "it is not even claimed that the defendant was engaged in any illegal activity at the time of his arrest." The Dunaway hearing was held in October 1994, and Supreme Court issued a written opinion and order dated January 5, 1995. The decision contains detailed findings of fact and concludes that the police had both probable cause to arrest defendant for murder and reasonable suspicion to stop and frisk him for possession of a weapon.
No warrant is required to arrest a suspect in a public place where there is probable cause to believe that he has committed a crime (United States v Watson, 423 U.S. 411; United States v Santana, 427 U.S. 38). There is no requirement that probable cause derive from a suspect's actions at the time of his arrest, and defendant's argument to this effect is entirely contrary to law (CPL 140.05, 140.10 Crim. Proc. [1] [b]; 140.15).
As Supreme Court found, the police had amassed ample information during the eleven days between the murder of Matilda Cotto, with whom defendant had been living, on February 20, 1990 and his arrest on March 3, 1990. It is disingenuous for defendant to suggest that the arresting officer, Detective Sergeant Jose Morales, who was a supervisor of the investigation by the Housing Police, was not familiar with investigative reports (DD-5's) filed by officers assigned to the case. When Ms. Cotto's body was discovered, a broken key was found in the lock. Defendant had a set of keys to the apartment, and both of the two other keys were accounted for and intact. Defendant's room appeared ransacked, and defendant's Goddaughter later told police that defendant had left a note for her stating that he was in trouble and would be gone a few days, but that she should not be frightened. She described defendant as a "very jealous individual" who had told her that "he had given up a lot for his girlfriend and that if she ever threw him out, he would kill her."
Police also learned that a man matching defendant's description had been seen in her company as she picked up a prescription from a neighborhood pharmacy between 3:00 and 4:00 P.M. on the day she was killed. A local postal worker informed police that, at about 6:00 P.M. that same day, he had met defendant on the street. Defendant said that he had been kicked out of the house and appeared to be shaken up.
On the day of the arrest, Detective Sergeant Morales received a telephone call from defendant's Goddaughter, whom he had earlier interviewed, and was informed that defendant was in a white van on 110th Street between First and Second Avenues. Defendant was reported to be wearing a leather jacket and to be armed with a gun. Morales, who had both a detailed description of defendant and his photograph, found him at the location, as reported. He approached defendant, drew his revolver, identified himself and placed defendant under arrest. A search of defendant's person yielded a loaded revolver, carried in an inside jacket pocket.
It is clear that the police had ample information from which to conclude that defendant had committed a crime and, thus, possessed probable cause to arrest him (CPL 140.10 [b]; People v De Bour, 40 N.Y.2d 210, 223) and to conduct a search for weapons incident to the lawful arrest (People v Smith, 59 N.Y.2d 454, 458). In addition, the report from a known informant that defendant was in possession of a gun, corroborated by the officer's independent observation, affords an independent basis for a frisk (CPL 140.50; People v Salaman, 71 N.Y.2d 869).
Concur — Murphy, P.J., Wallach, Rubin and Nardelli, JJ.