People v. O'Connor , 636 N.Y.S.2d 77 ( 1995 )

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered December 13, 1993, convicting him of kidnapping in the second degree and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

Ordered that the judgment is affirmed.

In December 1992, the defendant and several codefendants (see, People v Martinez, 222 AD2d 702 [decided herewith]), kidnapped a victim and held him in a building on the Horace Harding Expressway in Queens for several days. The perpetrators demanded approximately $60,000 in ransom money (later reduced to about $30,000) from the victim’s relatives and friends. The evidence at trial showed that this defendant punched, kicked, and threatened to kill the victim with a gun. When police officers arrived at the scene, they found the defendant guarding the handcuffed victim in a small back room of the building, and arrested him. The officers subsequently recovered the gun from a wastebasket where the victim indicated it had been hidden.

These facts and circumstances, when viewed together, convinced the experienced officers that the defendant was a participant in the kidnapping; hence, there was probable cause for his arrest (see, People v Oden, 36 NY2d 382, 384; see also, People v Bigelow, 66 NY2d 417, 423; People v Pegram, 203 AD2d 391; People v Fernandez, 185 AD2d 944, 945; People v Javier, 175 AD2d 182). Moreover, the gun seized pursuant to the lawful arrest was properly used to prove the defendant’s guilt at trial (see, e.g., Wong Sun v United States, 371 US 471; People v Young, 55 NY2d 419, 424, cert denied 459 US 848).

During the trial, which lasted more than three weeks, a sworn juror became "unavailable for continued service” pursuant to CPL 270.35. The court conducted a reasonably thorough inquiry and recited on the record the facts and reasons for the dismissal of the juror, as required (see, People v Page, 72 NY2d 69, 73; cf., People v Peregda, 164 AD2d 849; People v Paniaqua, 160 AD2d 334).

The defendant’s sentence was not excessive (see, People v Suitte, 90 AD2d 80, 86).

The defendant’s remaining contentions are either unpreserved for appellate review (see, CPL 470.05 [2]) or without merit. Copertino, J. P., Pizzuto, Santucci and Joy, JJ., concur.